Application for review on grounds of bias unsuccessful
2008 case note – unsuccessful application for judicial review on the grounds of presumptive bias.
The taxpayer applied to the High Court for review of the Taxation Review Authority's ("TRA") refusal to recuse himself from hearing the applicant's challenge. The applicant alleged presumptive bias resulting from the extensive history of litigation involving the applicant before the TRA. The application for review was dismissed by the High Court.
Impact of decision
A consistent pattern of judgments against a party does not amount to bias, as judges must rule in accordance with the law and are not required to ensure equality of outcomes.
This case was an application for judicial review of Judge Barber's decision (sitting as TRA) not to recuse himself from hearing the applicant's personal tax challenge in the TRA.
For the last 20 years, the applicant has appeared in the TRA as both advocate and witness in his clients' tax disputes relating to the use of the 'Russell Template'. Of 82 cases in which the applicant was involved, 65 were heard by Judge Barber. Judge Barber is now presiding over the applicant's personal tax challenge. Mr Russell made an application for Judge Barber to recuse himself, claiming presumptive bias on the basis of the extensive history of template litigation and the fact that Judge Barber has consistently held against him. Judge Barber declined the application and Mr Russell applied for judicial review of that decision, outlining many of the findings against him or his clients.
Counsel for the Commissioner argued that the TRA had been most helpful to the applicant as a lay litigant, and had made findings in favour of him as well as against. The Commissioner also pointed out that Judge Barber's decisions had been upheld by appellate courts on almost every occasion.
Justice Cooper dismissed the application, observing (at paragraph 99) that the "position apparently adopted in the United States was that there cannot be reasonable questions about a Judge's impartiality arising simply from his or her determination of cases even if there was a consistent pattern of holding against one party".
His Honour went on to state that an approach whereby bias is judged by equality of outcomes would be inconsistent with the judicial oath and the principle that cases must be decided in accordance with the law. His Honour held that there cannot be presumptive bias where the rulings of the Judge were in accordance with the law, and observed that a fair-minded observer would be expected to know that much about the role of a Judge.
Bill of Rights Act 1990