Stephens v Attorney-General [1998] FijiLawRp 15; [1998] 44 FLR 58 (13 May 1998)

[1998] 44 FLR 58

HIGH COURT OF FIJI

Civil Jurisdiction

ANTHONY FREDERICK STEPHENS

v

THE ATTORNEY-GENERAL

Scott J

13 May 1998

Courts - bias - grounds for disqualification of tribunal.

Application was made to the Judge to disqualify himself on the ground of bias. After referring to the governing principles the High Court examined the relevant facts and dismissed the application.

Cases cited:

Amina Koya v. The State (CAV0002.1997)
Arab Monetary Fund v. Hashim & Others (No. 8) (The Times 4 May 1993)
Auckland Casino Ltd v. Casino Control Authority [1995] 1 NZLR 142
Grassby v. The Queen [1989] 168 CLR 1
Livesey v. NSW Bar Association [1983] 151 CLR 288
R v. Gough [1993] AC 646
R v. Russell ex parte Reid (1984) 35 SASR
R v Simpson ex parte Morrison (1984) 154 CLR 101

Interlocutory application in the High Court.

K. Vuetaki for the Plaintiff
D. Singh for the Defendant

Scott J:

These two actions are quite distinct and have not been consolidated; there is however in each a similar application and since similar grounds are advanced in support and similar principles are raised it is convenient to deliver one Decision dealing with both applications which are that I should disqualify myself from presiding further.

The law relating to bias has just very recently been considered by the Supreme Court of Fiji in Amina Koya v. The State (CAV0002.1997). The Court pointed out that although the House of Lords and the New Zealand Court of Appeal on the one hand applied "the real likelihood" test while the High Court of Australia on the other applied the "reasonable suspicion" test there was very little practical difference between the two approaches: "this is because there is little if any difference between asking whether a reasonable and informed person would consider there was a real danger of bias and asking whether a reasonable and informed observer would reasonably apprehend or suspect bias" (op.cit. p. 13).

The Australian test:

"has been clearly laid down. It is whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the Judge might not bring an impartial and unprejudiced mind to the resolution of the matter before him ... If so, then the Judge ought not to proceed to hear the matter"..... (Grassby v. The Queen [1989] 168 CLR 1, 20) (emphasis added)

The English and New Zealand test which is to be found in R v. Gough [1993] AC 646 (approved in