Tov-Lev v Lowbeer

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 The appellants have asked that I recuse myself on the basis that they say that I am of the Jewish faith and have been exposed to the opinions of persons in the Jewish community concerning these proceedings and the underlying background of animosity and dispute between them and the other faction within the Strathfield and District Hebrew Congregation, a company limited by guarantee, that is apparently the owner of the Holocaust and War Memorial Synagogue in Strathfield, a suburb of Sydney. 2 The test as to whether a judge should recuse himself or herself is, in the absence of any suggestion of actual bias, whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement that reflects the fundamental importance of the principle that the tribunal be independent and impartial: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. Their Honours went on to say that (at 345 [7]-[8]): "Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability….No attempt need be made to inquire into the actual thought processes of the judge or juror. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." (bold emphasis added) 3 The appellants argue that the future of the Synagogue and their own association with it is a matter of great sensitivity, as I imagine it would be. They also claim that another judicial officer whom they allege was of the Jewish faith had not found in their favour. They contend that that experience gave rise to an apprehension that I will also not find in their favour and that they wish to have some other judge hear the matter whom they could regard as impartial. 4 The appellants have not identified, in my opinion, what might lead me to decide the case other than on its legal or factual merits. More particularly, there is no logical connection in what the appellants have put between the suggestion of some association they claim that I have with the Jewish faith or community, whatever that might mean, and their assertion that I might not bring a fair and impartial mind to the resolution of this dispute. 5 It is equally important in the administration of justice that a judge does not too readily recuse himself or herself merely because a litigant has expressed an apprehension that the judge might not bring an impartial mind to the resolution of the dispute. This is why the High Court explained the need for there to be a clear articulation of what is alleged to be the concern that might rise to a perception in the fair-minded lay observed that the judge might not decide the case other than on its legal and factual merits and, secondly, the articulation of the logical connection between that perception and the feared deviation by the judge from deciding the case on its merits. Moreover, disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J; see too Allsop CJ, Middleton and Katzmann JJ in GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150 at [40], approving and applying Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [32] per Kenny, Tracey and Middleton JJ. 6 While I understand the appellants are deeply concerned that their case should be decided by an impartial judge and they fear, or have some perception, that a connection between me and the Jewish faith or community might lead me to deflect myself from my judicial oath, I am not persuaded that they have demonstrated any basis for me to recuse myself. They have not identified beyond mere assertion, first, anything that a fair-minded lay observer might consider might lead me not to decide these two matters on their legal and factual merits, or secondly, any logical connection to establish that so as to require me to recuse myself. 7 For these reasons I refuse the application. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.