The Court of Appeal has dismissed Ammi Burke’s appeal against the High Court’s dismissal of her judicial review claim and its order that she pay costs on a legal practitioner and client basis.
In a judgment delivered on 30 April 2024, Mr Justice Noonan said the appeal was decided on the appeal papers after Burke, who represented herself, declined to proceed with oral argument following the court’s refusal of her application to recuse its President. The court had considered the application and ruled on it before inviting her to continue with the appeal.
Burke’s judicial review challenged an adjudication officer’s dismissal of her unfair dismissal application. The officer had ended the hearing after persistent interruptions by Burke and her mother made it impossible to continue. Burke argued, among other things, that the officer had wrongly treated the process as adversarial, failed to summon witnesses or direct the production of emails, and lacked jurisdiction to dismiss her claim.
At the High Court hearing, Burke also sought the trial judge’s recusal, citing a 2015 legal article, professional connections with counsel for the notice party, a comment that her case was not a public interest case, and the judge’s nomination as a possible mediator. The judge refused recusal. The High Court later dismissed the judicial review claim after Burke repeatedly challenged that ruling and disrupted the hearing. It subsequently ordered costs against her on a legal practitioner and client basis.
The Court of Appeal found no basis to overturn the recusal decision. It said the trial judge’s earlier academic comments did not establish that she had predetermined an issue, and that the public-interest comment had arisen in the context of a refused request to add relief the judge considered unnecessary to decide the case.
The appeal court held that the High Court was entitled, in the exceptional circumstances, to dismiss the claim to protect the other parties’ right to a fair hearing and the court’s ability to conduct proceedings. It also rejected Burke’s challenge concerning a transcript that had been provided to the judge before she received a copy. The High Court adjourned the costs hearing and directed that the transcript be furnished to Burke; the Court of Appeal said any unfairness had thereby been remedied.
The court upheld the High Court’s costs order, which excluded costs of the adjourned costs hearing and the stenographer or transcripts. It said the respondents and notice party were provisionally entitled to their costs of the appeal. Burke was given 14 days to make written submissions opposing that proposed order, with the same period for the other parties to respond. The judgment did not record a final appeal-costs order.