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Disqualification for Bias

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More About This Book

Product Details

  • ISBN-13: 9781862878808
  • Publisher: Federation Press
  • Publication date: 5/28/2012
  • Product dimensions: 6.20 (w) x 9.30 (h) x 1.00 (d)

Table of Contents

Foreword The Hon Justice John Basten v

Preface xiii

Table of Cases xiv

Table of Statutes xxxiv

1 The Disqualification Principle 1

Introduction 1

Rationale for the disqualification principle 3

Defining bias and prejudice 9

Recusal and disqualification 11

Judicial bias and administrative bias 12

Undesirability of fixed rules 13

The judicial oath and juror's oath 13

Scope of the book 15

2 Early History and Modern Developments 19

Early history of judicial bias 19

Principle that justice should be seen to be done 23

Independence from executive government and the legislature 27

3 Test for Bias 33

Adoption of a subjective test for bias 33

Emergence of an objective test for bias 35

Establishment of two tests 39

Real likelihood test prevails 41

Revival of the reasonable suspicion test 43

A choice of two tests 45

Real danger test abandoned in England 52

New Zealand test left in a void 54

Applying the test 56

Characteristics of the fair-minded observer 58

Knowledge of the fair-minded observer 61

Increased challenges to judges 66

4 Disqualifying Factors 70

Lack of independence 71

(i) Initial challenges in Australia 71

(ii) The Kable doctrine 73

(iii) Acting, temporary and part-time judges 79

Interest in the cause 85

(i) Pecuniary interest held by judge or decision-maker 86

(ii) Pecuniary interest held by other persons 93

(iii) Non-pecuniary interests 95

Prejudgment or predetermination 97

(i) Views expressed extra-judicially 98

(ii) Views expressed in previous cases 104

(iii) Views on the credit of a party or a witness 106

(iv) Expressing opinions on issues in the case 120

(v) Expression of views during a hearing 122

(vi) Tentative views are not a disqualifying factor 128

(vii) Views of others are not a disqualifying factor 132

(viii) Deciding against a party and case management 134

(ix) Conduct before a decision 137

(x) Knowledge about an accused 139

(xi) Prejudgment through personal circumstances 139

(xii) Evidence from earlier cases 141

(xiii) Prior employment 145

Association 145

(i) Association with a party or a witness 145

(ii) Association with a complainant 156

(iii) Association with a legal representative 157

(iv) Personal relationship between a judge and a legal representative 164

(v) Judgment by peers 165

(vi) Previous association with the proceedings or subject matter of the proceedings 166

Outside influence or information 168

(i) Access to extraneous information 168

(ii) Communications with a judge or decision-maker 172

(iii) Disqualified person present at a hearing or influencing a decision 180

(iv) Acting on instructions or under influence 185

Conduct by the judge or decision-maker 187

(i) Acting as accuser or prosecutor 187

(ii) Acting as a witness 193

(iii) Descending into the arena 194

(iv) Departure from proper standards of fairness 197

(v) Judge's decision impacts on a third party 204

(vi) Membership of an association 205

(vii) Actual bias 206

Conduct by a litigant 210

Conduct by a legal representative 212

Statutory disqualification 214

5 Exceptions to the Disqualification Principle 215

Waiver and acquiescence 215

93 Necessity 227

95 Special circumstances 230

Contractual agreements 231

6 Application of the Disqualification Principle 237

Juries 239

Arbitrators, referees, costs assessors and taxing officers 259

Tribunal decisions 260

Administrative decisions 263

Political and ministerial decisions 265

Sporting and other clubs 267

Local government 270

Disciplinary proceedings 272

Inquiries, investigations and inquests 274

Officers of me court and non-court appointed liquidators 276

Expert witnesses 278

Military tribunals 278

International tribunals 281

7 Practical Issues 287

Need for appropriate disclosure 287

Questioning judges 291

Duty to sit if not disqualified 293

Judicial immunity 295

Judicial misconduct 296

Duty of counsel 298

Judge should be notified in advance of a recusal application 299

Bias questions to be addressed first on appeal 300

Alleged disqualifying factors are considered separately and cumulatively 301

Some judgments are void and some are voidable 301

Evidence on appeal 304

Withdrawing from proceedings 309

Settlement of proceedings after an apprehension of bias 310

Judges make their own recusal decisions 310

Recusal decision cannot be made on advice 314

Apprehension of bias can be corrected 314

Improper to use recusal application as a tactic 315

Allegations of bias may amount to contempt 317

Contempt proceedings 320

Standing to make a recusal application 324

8 Remedies 325

Injunction 325

Certiorari 326

Mandamus 327

Prohibition 329

Statutory judicial review 331

Stay of proceedings 332

Appeal 333

Declaratory relief 341

Order to recall witnesses 342

Severance 343

Set aside or vary final orders 343

Referring a question of law 344

Reconstitution of a tribunal 345

Transfer of the proceedings within the court 346

Transfer of the proceedings to another court 346

Constitution of the court with judges from another court 348

Retrial following an acquittal 349

9 Future Developments and Conclusion 351

Human rights considerations 351

Recusal decision to be made by another judge 356

Conclusion 358

Bibliography 359

Index 369

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