A Northern Territory judge has refused to step down from hearing a civil case brought by Dylan Voller and Jake Roper against the NT government.
Last week the previous judge, Justice Judith Kelly, recused herself from the case.
Voller and Roper are suing the NT government over their treatment while detained in Darwin’s Don Dale juvenile detention centre, including the notorious teargassing incident of August 2014.
The case, which has had a rocky start, went before the court on Friday to hear Justice Peter Barr rule on an application by the pair’s legal team for him to step down.
Barr was the judge in the appeal by a former guard who had been accused of assaulting then 13-year-old Voller. The guard was acquitted.
Barr was also the judge who sentenced Voller to more than three years in jail in 2014, and who granted Voller bail to a bush rehabilitation camp earlier this year.
Kelly, who recused herself from the case last Friday, had sat in judgment on a related civil claim by the four other detainees involved in the tear-gassing incident.
In that case Kelly awarded the four teenagers $53,000 in compensation for some claims, but found the tear-gassing itself – which occurred after Roper got out of his cell and caused extensive damage – to be reasonable and necessary.
Five of the six boys had been held in isolation for up to 17 days after earlier escaping from the centre. In handycam footage of the moments before guards sprayed the teargas, one was captured saying: “I’ll pulverise the little fucker.”
A separate class action has also been launched by other former detainees in the federal court.
Kelly had initially refused to recuse herself while Voller and Roper’s case was in what she described as a “shambolic state”.
“I’m not handing over this to anybody else until it is in order,” she said in August.
Kelly criticised the state of the plaintiffs’ case and an apparent lack of prepared evidence. Roper’s lawyers reportedly failed to get an affidavit from their client setting out his claims, because they could not find him.
Voller was the only former detainee to publicly give evidence at the royal commission into the protection and detention of children in the NT. A number of others gave evidence in camera.
The final report from the commission is scheduled for release on 17 November.