Seven Network (Operations) Ltd v Dowling [2021] NSWSC 726 (21 June 2021)
Applicant was previously charged with contempt for disobeying court orders to take down blog posts. The former applied for recusal alleging that the judges were not impartial, the court considered whether the test for non-impartiality which is the apprehension of bias was fulfilled.
Facts:
Shane Downling used the content of text messages in Fifth Blog Post posted on a website in which the defendant solely owned (the Website) and did not remove the Fifth Blog Post from the Website. The Fifth Blog Post continued to be posted in another website (the Second Website) three months after the Orders. The defendant applied for recusal alleging that no judge of the Court is impartial.
Issue:
Whether the judge should be disqualified by reason of the appearance of bias.
Applicable Law:
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Uniform Civil Procedure Rules 2005 (NSW) r 10.14 - provides the rules for ordering a substituted service. Johnson v Johnson (2000) 201 CLR 488 - provides the test for determining whether a judge is disqualified by reason of the appearance of bias. Seven Network (Operations) Ltd v Dowling [2018] NSWSC 1890 at [58]- [62] - provides that an application for a judge to recuse themselves for bias is based upon something that the judge has said or done. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 - illustrates how apprehension of bias principle is applied. |
Analysis:
The plaintiff is understood to have been personally served as the orders were in the proper form issued by the Court. The absence of a seal does not mean otherwise. In applying the apprehension of bias principle, the things said must be decided by the judge who was led by other than legal and factual merits and that there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
The plaintiff failed to point to any statement by a judicial officer which would affect their ability to determine the case in a neutral manner. The statement by the plaintiff about judges did not lead to apprehension that the presiding judge may decide the case other than on its merits – judge determined earlier motion.
Conclusion:
The court denied the application for recusal. The charge of contempt was sustained because once the defendant was ordered to remove the Fifth Blog Post, he did not remove the same and continued publishing. It is considered as a deliberate disobedience to the Orders.
