Judicial Recusal: When The Trial Gets Personal

As the seat of judicial power, the courtroom in many ways embodies the prestige law enjoys within society. Behind heavy doors, the honorable judges dispense justice from on high: spatially, intellectually and morally removed from the parties that appear before them. This power relationship permeates court proceedings and procedures, the majority of which come with the disclaimer ‘if it please the court’.

Allegations of bias are unusual because they cause the judge in question to be brought into the spotlight behind which they would ordinarily be sitting. Where once a judge might have been abstracted from the proceedings unfolding in their courtroom – involved but not otherwise invested, he or she would now invariably be a stakeholder in the result. It is unusual that a judge chooses to remain under the spotlight; Justice Antonin Scalia’s decision to remain on the Richard Cheney case, supported by a 21-page memorandum sparked a controversy that rocked public opinion of the judiciary in the US.

How does judicial recusal work? 

In Australia, there are two categories of bias that may form the grounds for judicial recusal/disqualification:

1. Actual bias or ‘bias in fact’ is when the judge in question is, as a matter of fact, affected by a conflict of interest that would preclude compliance with their Judicial Oath. Actual bias is grounds for disqualification;
2. Apprehended bias is when there are grounds to foresee the judge being affected by a conflict of interest. The test was established in Johnson v Johnson (2000) 201 LR 488 [at 11]:  

The latter of these allegations is far more frequent – not only is it easier to establish apprehended bias, but it is distinct from, and therefore substantially less offensive than an inquiry about any actual bias (see Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 ).

The practice in Australia is for the judge who is the target of a bias allegation to decide whether or not to recuse him or herself, even where there are multiple judges sitting.  Refusal to do so may be relied upon as a ground for appeal in relation to the substantive judgment.  

An example of a successful application for recusal is Kirby v Centro Properties Limited (No 2) [2008] FCA 1657, in which Finkelstein J accepted that ownership by his superannuation fund of shares in one of the respondent companies amounted to apprehended bias. 

Conversely, in Metropolitan Fire & Emergency Services Board [2014] FWC 3117, Commissioner Wilson refused to recuse himself on the grounds of apprehended bias due to the possibility of him being called as a witness to an event on which he might be required to make findings.

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Amanda Frost, ‘Keeping up Appearances: a Process-oriented Approach to Judicial Recusal’ (2004) 53 University of Kansas Law Review 1, 531