Mandie v Memart Nominees Pty Ltd

[2017] VSCA 177

Victorian Court of Appeal

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Interrogate

Catchwords

1. Courts and Judges
2. › Apprehended bias
3. › Interlocutory finding overturned on appeal
4. › Whether judge ought to recuse from finally determining claim
5. › Claim now advanced on basis not previously argued before judge
6. › Whether fair-minded lay observer might reasonably apprehend bias
7. › Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
1. Courts and Judges
2. › Apprehended bias
3. › Judge's criticism of party's conduct
4. › Whether criticism unreasonable
5. › Whether giving rise to apprehension of bias
1. Courts and Judges
2. › Recusal
3. › Residual discretion to recuse in absence of disqualification
4. › Whether refusal to exercise discretion susceptible to appellate review
5. › Whether House v The King error must be shown
6. › Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Quick Take

Where a judge's interlocutory finding is overturned on appeal on the basis of an argument never put to the judge, no reasonable apprehension of bias arises from the judge continuing to hear the matter. A judge's decision not to recuse in the absence of disqualification is not readily susceptible to appellate review, as it involves a counsel of prudence rather than a legal discretion. If reviewable at all, House v The King error must be shown by reference to the requirement that circumstances be exceptional to displace the duty to sit.