Reynolds v Rayney

[2023] WASCA 144

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Courts and Judicial System
2. › Judges
3. › Apprehended bias
4. › Recusal
5. › Prior association between judge and counsel
6. › Whether past employer-employee and partnership relationship ending 15 years before trial gave rise to reasonable apprehension of bias
7. › Whether fair-minded lay observer might reasonably apprehend judge might not bring impartial mind to decision
1. Courts and Judicial System
2. › Judges
3. › Apprehended bias
4. › Non-disclosure of prior association
5. › Whether failure to disclose prior working relationship reinforces apprehension of bias
6. › Whether non-disclosure has independent legal significance
1. Courts and Judicial System
2. › Judges
3. › Apprehended bias
4. › Ebner two-step test
5. › Identification of factor and logical connection to feared deviation from impartial decision-making
6. › Whether forensic disadvantage supplies logical connection
1. Appeal
2. › Leave to appeal
3. › Interlocutory decision
4. › Recusal application
5. › Whether decision attended with sufficient doubt to warrant reconsideration

Quick Take

A past working relationship between a judge and counsel for one party — even one of significant duration (11 years) including employer-employee and partnership — does not give rise to a reasonable apprehension of bias where the relationship ended 15 years before trial and there was no continuing professional or social association. Non-disclosure of such a relationship has no independent legal significance where the relationship itself is not potentially disqualifying. Complaints of forensic disadvantage arising from non-disclosure do not supply the 'logical connection' required by the second step of the Ebner test.