The Plaintiff applied for the recusal of the Case Management Judge due to alleged reasonable apprehension of bias. The Plaintiff claimed that the conduct of opposing counsel, the progression of the case, and comments made by Justice Silver during proceedings, all suggested a lack of impartiality. Additionally, the Plaintiff argued that Justice Silver was disqualified from presiding as Case Management Judge because of breach of jurisdiction. Ultimately, the Plaintiff’s Application for recusal based on reasonable apprehension of bias and breach of jurisdiction was dismissed.

The Court emphasised that in cases where reasonable apprehension of bias by a presiding judge is alleged, an objective test is used. A successful applicant must show that a reasonable and fully informed person looking at the circumstances realistically and practically, and having thought the matter through, would conclude that it is more likely than not that the decision maker, whether consciously or unconsciously, would not decide the case fairly.

Prior to conducting its analysis, the Court acknowledged that a case management judge’s authority is broad, and that Rule 4.14 lists several areas of case management involvement, including directing necessary procedural orders and deciding pre-trial issues in the broader context of litigation plans, along with a judge’s right to control the conduct of the proceedings before them in a just and proportionate manner. Further, a case management judge must provide a fair and impartial process to minimize the disadvantaged position of self-represented litigants, including early case management.

The Court concluded that the conduct of opposing counsel, namely correspondence to the Court, was not inappropriate, as it was brief, it was procedural, it was directed to case management issues, and it did not contain any argument requiring a substantive decision on the merits of the case. Moreover, the Court found that a reasonable and informed person would understand that a Judge receiving the correspondence would take the correspondence as simply one party’s view and would know that a Case Management Judge controls the ultimate agenda of hearings. The Court also found that there was no bias with the progression of the case, as Silver J. actively took steps to protect the Plaintiff’s rights and interest, including allowing the Plaintiff to review an improperly filed Affidavit, and by taking steps to ensure it was not part of the filed material of the Action. As it related to the comments made by Justice Silver during proceedings, the Court concluded that the comments were relevant, as they were made for the purpose of gaining a more complete understanding of the issues, and because questions from an appeal judge are usual, not contrary to the law.

Lastly, in respect of the Plaintiff’s Application regarding breach of jurisdiction, the Court dismissed the Plaintiff’s argument as flawed. Most notably, the Court found that, pursuant to Rule 4.14(2), case management judges are required to hear every application filed in an action unless the Chief Justice or judge or Rules direct otherwise. The Court also cited judicial economy, prematurity and judicial hierarchy as other grounds to dismiss the Plaintiff’s Application regarding breach of jurisdiction.