Recusal Guidelines

Recusal Guidelines for Judges of the Employment Court pursuant to s 222B Employment Relations Act 2000

The Chief Judge, after consultation with the Judges of the Employment Court, publishes these guidelines for determining issues about potential conflicts of interest and recusals.  The procedures described are intended as guidance.  Decisions about recusal are very much fact-dependent and the approach taken in particular cases may vary accordingly.  Ultimately any decision about a Judge’s recusal is for that Judge alone to make.  The Chief Judge also considers that the Judges are bound to act in this regard and generally, pursuant to the Guidelines for Judicial Conduct(external link).

  1. There will be some situations in which individual Judges should ask Registrars to ensure that they are not allocated classes of case.  Non-exhaustive examples may include where a recent appointee to the Bench should not sit on proceedings involving a former client of that Judge in legal practice and, in particular, litigation concerning an issue in which the Judge may, as a practitioner, have been personally involved.  Such directions to the Registries will need to be reviewed periodically to reflect the length of time that has elapsed since such a formal association with a party to, or a significant witness in, litigation.  Another example of this proactive avoidance of conflicts of interest might include a Judge advising Registrars not to allocate cases in which a party’s lawyer is from a firm in which a close relative of the Judge is a partner or otherwise works as a lawyer. There will be numerous similar scenarios to which Judges should be alert.
  2. If a Judge has any doubt about such self-initiated recusals, they should confer with the Chief Judge about this. 
  3. Apart from such ‘class of case’ recusals initiated by Judges themselves, Judges will need to address questions of potential recusal in particular cases.  Such questions will usually arise when a file is allocated to a particular Judge for pre-trial preparation and ultimate hearing and decision.  At this point the Judges have a responsibility to familiarise themselves with relevant parts of the court file as it then stands to consider whether any potential recusal issue may arise.  Allocation of files to individual Judges will usually take place in sufficient time before a substantive hearing which will enable alternative arrangements to be made for the case, if the originally scheduled Judge is to recuse himself/herself.
  4. After a file has been assigned to a Judge and its contents seen, the Judge may realise that there is some matter concerning their prospective involvement which the Judge considers warrants recusal.  In these circumstances, the Judge should stand aside and advise the Registry and the Chief Judge accordingly.
  5. Where the issue of potential recusal is not clear-cut, at that point the Judge should consult with the Chief Judge.  If, after consultation, the Judge considers the parties should be informed, there should be a formal communication by Minute of the Judge delivered to the parties through the Registrar.
  6. After the identity of the Judge assigned to a case becomes known to the parties, objection to a given Judge sitting may be raised for the first time by one or more of the parties.  That objection should be made known to the Registry and then directed by the Registry in the first instance to the particular Judge affected.  That Judge will consider the matter and in so doing should consult with the Chief Judge as to whether they should preside.
  7. If, in any case assigned to a Judge, the Judge does decide not to stand down from the case, the parties should be informed of this by a Minute issued by the Judge.  If a party maintains an objection, the parties will have an opportunity to file brief written submissions (normally no more than three pages in length) and, if appropriate in any particular case, affidavits.  The impugned Judge should determine the question of recusal with reasons, by a Minute with any information and observations that he/she wishes to make on the question of recusal.  The Judge should include in their Minute any and all circumstances known to the Judge which may give rise to a concern that he/she may not be impartial in the case.  The Judge’s Minute will be made available to the parties.  The matter of recusal will then be determined either on the papers or at an oral hearing, possibly by telephone, by the impugned Judge.  In multi-judge (full Court) cases, the Chief Judge or the presiding senior Judge will direct the procedure to be followed.
  8. Very late (including hearing day) applications for recusal will generally not be considered appropriate unless they could not have been reasonably foreseen.  If a recusal issue is raised at this late stage, the affected Judge will need to deal with the matter there and then.  The principles set out in these guidelines should, as appropriate, be applied in such circumstances.
  9. The following are general principles endorsed by the Chief Judge to which an individual Judge considering a question of recusal should give consideration.
  10. The guiding principle is that a Judge is disqualified from sitting if, in the circumstances, there is a real possibility that in the eyes of a fair-minded, objective and fully informed observer, the Judge might not be impartial in reaching a decision of the case.  This will include instances where a Judge has a material interest in the outcome of a case but there may also be other circumstances in which the appearance of bias in law arises.
  11. The Judge should consider a two-step test requiring consideration, first, of the circumstances relevant to the possible need for recusal because of apparent bias and, second, whether those circumstances lead to a reasonable apprehension that the Judge may not be impartial.  This test requires ascertainment first, of what it is that might possibly lead to a reasonable apprehension that the Judge might decide the case other than judicially and on its merits.  Second, the test requires consideration of whether there is a logical and sufficient connection between those circumstances and that apprehension.
  12. If, following the Judge’s careful consideration and discussion with the Chief Judge, the Judge concerned is satisfied that there is a real possibility that they cannot act impartially, or is satisfied that a fair-minded, objective and fully informed observer might reach that view, the Judge will determine not to hear and decide the relevant case.
  13. These guidelines will be reviewed periodically and may, after the statutorily-required consultation with the Chief Justice, be amended and republished by the Chief Judge.
  14. These guidelines are issued by the Chief Judge pursuant to s 222C of the Employment Relations Act 2000 following consultation with the Chief Justice.

 Graeme Colgan

Chief Judge

1 March 2017