The Supreme Court has rejected an application by Louis Blehein to have Mr Justice Murphy withdraw from an appeal concerning proposed legal proceedings over three periods of detention at St John of God Hospital.
Mr Blehein claimed that he had been detained against his will in 1984, 1987 and 1991. Before bringing civil proceedings connected with powers exercised under the Mental Treatment Act 1945, he required High Court permission under section 260 of that Act. The provision required substantial grounds for alleging that the proposed defendant had acted in bad faith or without reasonable care.
The High Court had refused permission on eight grounds advanced by Mr Blehein, while later allowing him to proceed on a separate argument that the hospital had not been legally designated as a place of detention. He was also given permission to challenge the constitutionality of section 260 in amended proceedings.
When his appeal came before the Supreme Court on June 25, 2001, Mr Blehein asked Mr Justice Murphy to recuse himself. He argued that the judge had previously exercised the section 260 jurisdiction in another application involving him and could therefore reasonably be expected to favour upholding that jurisdiction.
Mrs Justice Denham rejected that argument. She said the applicable test was objective: whether a reasonable, informed person would reasonably apprehend that the judge would not approach the case impartially.
The application did not allege personal bias against Mr Blehein. Instead, it rested solely on Mr Justice Murphy having previously applied section 260. Mrs Justice Denham held that judges have a constitutional duty to uphold and apply the laws in force, and previous exercise of a statutory jurisdiction could not itself require recusal.
She also stressed that the constitutionality of section 260 was not before the Supreme Court in this appeal. That proposed challenge remained a separate matter. The recusal application was therefore refused and the appeal was to be placed in the list for a hearing date.