Melbourne City Investments Pty Ltd v UGL Limited

[2017] VSCA 128

Victorian Court of Appeal

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Interrogate

Catchwords

1. Courts and Judges
2. › Bias
3. › Apprehended bias
4. › Recusal application
5. › Whether trial judge correctly applied Ebner test
6. › Whether use of 'would' rather than 'might' revealed misapplication of test
7. › Whether positive finding that observer 'would' conclude no prejudgment answered the Ebner test
1. Courts and Judges
2. › Bias
3. › Apprehended bias
4. › Judge raising matters of own motion
5. › Whether judge raising abuse of process of own motion gives rise to apprehended bias
6. › Whether incompatibility of roles as 'prosecutor' and judge
7. › Civil Procedure Act 2010 (Vic)
1. Courts and Judges
2. › Statement of reasons
3. › Adequacy of reasons
4. › Interlocutory application
5. › Whether adoption of one party's submissions constitutes adequate reasons
1. Appeal
2. › Standard of appellate review
3. › Findings of fact
4. › Whether appellate court may interfere with trial judge's findings on recusal application
5. › Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550

Quick Take

A trial judge's positive finding that a fair-minded lay observer 'would' conclude the judge had not formed a concluded view is capable of answering the Ebner test (which asks whether the observer 'might' apprehend bias), particularly where the judge was responding to submissions framed in those terms. The Robinson Helicopter standard of appellate review (glaringly improbable or contrary to compelling inferences) applies to findings of fact made in recusal applications. A judge who raises abuse of process of own motion and invites submissions does not thereby give rise to apprehended bias.