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Supreme Court judge recused over client’s disciplinary complaint
A woman used a disciplinary complaint to have a Supreme Court judge recused from hearing a matter against one of Australia’s biggest firms.
Naomi Neilson
South Australian woman Silvana Lauro fought to prevent Judge Graham Dart, a master of the Supreme Court, from hearing his taxation of costs dispute with major law firm Minter Ellison.
However, disciplinary action filed with the Officer for Public Integrity and the Legal Profession Conduct Board swayed the Supreme Court.
“In all the circumstances, a fair-minded lay observer might reasonably apprehend that Judge Dart may not bring an impartial mind to the resolution of the issue that he is required to determine,” Justice Sandi McDonald, who heard the appeal, determined.
Justice McDonald also made it clear that the order does not “in any way suggest that the complaints are meritorious”.
Lauro retained MinterEllison between May 2011 and early 2013 to assist with civil matters associated with domestic construction.
One of those actions concerned Marble House, a company that provided building services to Lauro.
When that matter came before Justice Dart in December 2014, the judge recused himself because, at the time, he was concerned with separate civil dealings with Marble House.
The current taxation matter was heard before Judge Katrina Bochner in July 2022, but she also recused herself because she heard an appeal concerning Lauro in the past and made adverse findings.
While Judge Bochner, also a master, remained on to hear a separate matter between Lauro and MinterEllison, the taxation matter was administratively reallocated to Judge Dart to deal with.
Lauro objected to this, claiming Judge Dart “had a conflict of interest in relation to any proceeding involving the appellant” and the matter should never have been reallocated to him.
Judge Dart refused to recuse himself, telling Lauro that Marble House had no interest in the outcome of the matter so there could be no conflict.
In the matter before Justice McDonald, Lauro claimed Judge Dart referred to one of Marble House’s company directors by his first name and made other comments that allegedly suggested the judge “had a closed mind” or “preconceived ideas” about his litigation.
Lauro then made a complaint about Justice Dart to the Officer for Public Integrity and the Legal Professional Conduct Board.
While the complaint alone would not warrant recusal, Justice McDonald said the “unusual history” of the matter and the nature of the complaints made against Justice Dart meant it was appropriate for the recusal application to be granted.
Justice McDonald went on to say the difficulty in this case was that once there was a perception of bias, it “colours how any adverse decision is received from the point that perception was created”.
“It does not follow, however, that a far-minded lay observer might apprehend, based on the manner in which Judge Dart has conducted the proceedings to date, that he may not bring an impartial mind to bear on the issues,” Justice McDonald said.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
