Livesey v New South Wales Bar Association; 20 May 1983

References: (1983) 151 CLR 288, (1983) 47 ALR 45, (1983) 57 ALJR 420
Coram: Mason(1), Murphy(1), Brennan(1), Deane(1) and Dawson(1) JJ.
High Court of Australia – Courts and Judges – Bias – Prejudgment of issues and of credibility of witness – Refusal to withdraw.
The defendant barrister resisted an application to strike his name off the roll. B, at the time a law student and later an applicant for admission to the roll as a barrister, had provided $10,000 as cash surety for S, a defendant in criminal proceedings, who was then granted bail but absconded. The cash surety was duly forfeited. When B applied to be admitted as a barrister, the Admission Board rejected her application on the basis that she knew full well that the $10,000 surety was S’ money and not her own and could not therefore be used as surety. She appealed to the New South Wales Court of Appeal which heard evidence and concluded that B had not told the truth. Her case was that she had been lent the money by a Ms A and that she had been unaware that Ms A had herself obtained the money with the help of Livesey (S’ barrister) who had then transported the cash from Victoria to Sydney and visited S in jail before Ms A supposedly visited Ms B and offered to lend her the money. In circumstances where both Livesey and Ms A ‘well knew where the money had come from’, Moffitt P found it impossible to believe Ms B did not. When a subsequent application was made to disbar Livesey, he found that both Moffitt P and Reynolds JA were members of the tribunal hearing his case. He applied for them to recuse themselves but they refused and he was struck off the roll.
Held: ‘a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and sufficient issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.’
This case cites:

  • Approved – Ex Parte Lewin; In re Ward ([1964] NSWR 446, 80 WN (NSW) 1527)
    (Australia – New South Wales) The court heard an an application for a rule nisi for a writ of statutory prohibition directed to a magistrate in proceedings by a landlord for the recovery of premises. The magistrate had already heard and determined a . .

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