May 23

The Judge Doesn’t Like Me!

In matters brought to Court, Judges are the final decision makers and their decisions can have serious consequences on the freedom and finances of individuals.

Our legal system requires our Judges to be impartial and judge matters based on their facts and merits, ignoring any personal view or bias they may have.  However, as recent instances such as the allegations of bias against Federal Circuit Court Judge Alexander Street for rejecting almost every migration appeal heard by him have shown, the impartiality of Judges is a hot topic issue.

The recent Queensland Court of Appeal case of Amos v Wiltshire [2016] QCA 70 gives us a timely reminder of when a Judge is likely to be biased towards one party and should be disqualified from hearing a case.  In that case, Judge Gotterson was alleged by the Applicant, Amos, to be biased because when the Judge was a barrister in 1998, he represented the opposite party in a separate appeal by Amos.

The relevant test to determine if a Judge is biased is “whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge was required to decide”.  A Judge should always disclose any interests and associations they have if there is a serious possibility that they are potentially disqualifying.

It was found that because :

  1. Judge Gotterson has no recollection of the case in 1998;
  1. In the 1998 case, the Applicant was not cross-examined and the Court made no findings about his credibility or reliability as a witness;

Judge Gotterson was not biased and could not be disqualified from hearing Amos’ current appeal.   If there had been a finding by the Court in the 1998 case that Amos was not a credible witness, Judge Gotterson may have been perceived to be biased due to his involvement with that case.  Therefore, what we can take from this case is that a simple association of a Judge with or against a party to a case is insufficient to show bias and there needs to be some grounds to show there is actual bias.

Contact McLaughlins, your Gold Coast Litigation Lawyers if you require any assistance with your civil litigation needs.

Author: Sonaaz Farhadi-Fard

Partner: Ian Kennedy

Date: 23/05/2016

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