Andreevich & Andreevich (No 2)
[2023] FedCFamC1F 43
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Andreevich & Andreevich (No 2) [2023] FedCFamC1F 43
File number(s): MLC 8101 of 2020 Judgment of: MCNAB J Date of judgment: 9 February 2023 Catchwords: FAMILY LAW – PROPERTY – Interim Application – Application for Recusal – Whether statement by judge in the course of discussion with counsel in an interim application gave rise to reasonable apprehension of bias –application dismissed Legislation: Family Law Act 1975 (Cth) ss 60CC, 75(2)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rule 7.11
Cases cited: AB v XYZ Pty Ltd [2019] VSC 788
Charisteas v Charisteas [2021] HCA 29
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Johnson v Johnson (No 3) (2000) 201 CLR 488
JRL, Re; Ex parte CJL; sub nom Renaud, Re; Ex parte CJL (ALJR) (1986) 161 CLR 342
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Pearlman v WA a/Information Commissioner [2019] WASC 257
R v Ewanchuk [1999] 1 SCR 330
Vakauta v Kelly (1989) 167 CLR 568
Without Fear or Favour: Judicial Impartiality and the Law on Bias (ALRC Report 138)
Aronson, Mark & Weeks, Judicial Review of Administrative Action and Government Liability (sixth edition) P. 656 (para 3).
Division: Division 1 First Instance Number of paragraphs: 53 Date of hearing: 23 January 2023 Place: Melbourne Counsel for the Applicant: Dr R Smith Solicitor for the Applicant: KHQ Lawyers Solicitor for the Respondent: Ms H of Garland Hawthorn Brahe ORDERS
MLC 8101 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ANDREEVICH
Applicant
AND: MR ANDREEVICH
Respondent
order made by:
MCNAB J
DATE OF ORDER:
9 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The wife’s application filed 7 November 2022 that I recuse myself from further hearing the matter is dismissed.
2.The question of costs be reserved to the trial.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Andreevich & Andreevich has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McNab J:
This matter relates to an application for recusal filed on 7 November 2022 by the applicant wife, Ms Andreevich, who is the respondent in broader proceedings. The respondent husband, Mr Andreevich, filed a response on 4 January 2022, seeking for the wife’s application in a proceeding to be dismissed.
This matter last came before me on 11 August 2022 through an application to:
(1)Adduce adversarial expert evidence relating to the valuation of the parties’ business; and
(2)Arrangements for overseas holidays with respective parents and their children.
I delivered judgment on 24 August 2022 allowing the evidence to be adduced, and published my reasons. The wife has not sought leave to appeal this decision.
This matter pertains to parenting and property and is listed for final hearing on 27 March 2023 for 5 days.
This application relates to comments I made during the hearing on 11 August 2022. The wife’s application sets out these comments: “in my experience with [medical professionals], with due respect to the [medical professionals] here, is that they are all very interested in money … it’s a matter at the top of their mind”.
The wife claims that these comments show that I:
… may not bring an impartial or unprejudiced mind to the resolution of the issues, particularly where a significant issue in the case is the operation and valuation of [the wife’s] [business].
Both parties have filed affidavits in support. The wife has annexed the revised transcript from the hearing on 11 August 2022.
This application was filed on 7 November 2022. No adequate explanation has been given for the delay in making the application. The court was told that the transcript that was first obtained was incomplete and a revised transcript had to be obtained. However, there is no evidence as to when the transcript was first ordered.
THE HEARING ON 11 AUGUST 2022
The application relates to a hearing on 11 August 2022, which included an application by the husband to adduce and rely on the adversarial expert evidence of Mr B pursuant to rule 7.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the rules”) in relation to the value of the business, C Company (“C Company”). C Company is a joint venture in which the wife attended to business services, and the husband acted as business manager. It is operated under the structure of G Pty Ltd (“G Pty Ltd”).
This application was made in circumstances where a single expert, Mr D, was appointed by orders made by consent on 18 November 2020. He was instructed to value the two business streams operated under G Pty Ltd (being the business and the husband’s Consultancy Services business) and indicate the separate value of each. On 30 September 2021, Mr D provided his report which assessed the value of C Company to be $19,004 under a value to owner methodology. The husband sought to challenge this report, and on 11 November 2021 sent instructions to Mr B to prepare a report providing his opinion of the value of C Company, and addressing deficiencies in Mr D’s report. Mr B concluded the fair market value is $650,102.
This resulted in circumstances where the wife sought to have C Company valued at $19,004 and the husband sought to have it valued at $650,102. Leave was granted for the husband to adduce the report of Mr B at trial as an adversarial expert and reasons.
The hearing on 11 August 2022 involved extensive discussion of Mr D’s valuation of $19,004 and discussions as to how and why the two expert valuations were so far apart.
The relevant part of the revised transcript, which sets out the exchange between the court and counsel for the wife, is as follows:
HIS HONOUR: But it’s totally anomalous that this business that’s producing this income, year after year, employing people with a – clearly with a steady clientele, is worth nothing.
MR MARCHETTI: Sir, can I put it this way – and I simply say it in this aspect – there is not that great a distinction between a barrister who may have a very thriving practice, but his business or her business might be valued at zero.
HIS HONOUR: But it’s a different type of work. This is year in, year out, people are taking their children to […]; you know, they’ve got a clientele, they’ve got issues that go on. It’s not like being a barrister.
MR MARCHETTI: In family law it might not be.
HIS HONOUR: And this is a [business] where there’s money coming in year in, year out and it’s there. Now, my experience with [medical professionals], with all due respect to the [medical professionals] here, is that they are really very interested in money. They’ve got a lot of time to think about it; they’re standing there and they’re very interested in it, right. It’s a matter of – at the top of their minds, right. And the fact is that businesses are bought and sold, particularly […] businesses.
MR MARCHETTI: Well, sir, there’s no evidence about that anywhere.
HIS HONOUR: Well, there is, in [Mr B’s] report. If we go to his report, it has got the flavour of boilerplate, but it’s there where he describes - - -
MR MARCHETTI: Yes, sir. Each of the two experts - - -
HIS HONOUR: Yes, yes.
MR MARCHETTI: - - - it’s acknowledged that you can sell a business and you can only sell a business to a [medical professional].
HIS HONOUR: Yes, but - - -
MR MARCHETTI: And when your Honour said the [medical professionals] in this room, there’s only one [medical professional] in the room.
HIS HONOUR: Yes, well, all right, but – okay – and I said “with all due respect”.
MR MARCHETTI: No, no, no, I accept that, but that’s what I’m saying, there’s only one person within this room who could have it.
HIS HONOUR: Yes, that’s fine, but she’s employing people, she’s running a business. She’s – it’s there and she has got a list of clients who go there and they’ve got – she has got probably an arrangement with the [medical professionals] who are there. I don’t know what those arrangements are, but there’s probably non-competition type - - -
THE APPLICATION
The wife submits that I ought to recuse myself from hearing the trial of this matter on the grounds that there is an appearance of bias on the basis of the following comment, which she submits a fair-minded lay observer might reasonably apprehend shows I may not bring an impartial mind to the resolution of this matter:
… Now, my experience with [medical professionals], with all due respect to the [medical professionals] here, is that they are really very interested in money. They’ve got a lot of time to think about it: they’re standing there and they’re very interested in it, right. It’s a matter of – at the top of their minds, right…
In written submissions handed up on her behalf, the wife submits that the bias becomes clear if the reference to “[medical professionals]” is substituted to “women” or “Irishmen”.
The wife denies that the context of the comments does anything to alleviate the apprehension. She refers to Johnson v Johnson (No 3) (2000) 201 CLR 488 where it was held at [14] that “no doubt some statements, or behaviour may produce an ineradicable apprehension of judgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement”. The wife submits that this is not such a case where the preliminary impression was altered by later statements.
She submits that this comment shows I have certain beliefs with respect to medical professionals, a class of which the wife is a member, and will not decide the case solely on its merits, but will take into account this opinion. She refers in written submissions to AB v XYZ Pty Ltd [2019] VSC 788 quoting from R v Ewanchuk [1999] 1 SCR 330:
[45] The need to avoid making judgments based on myths and stereotypes is equally important in a civil case. It is fundamental to the judicial function to decide each case on its merits, based on the evidence in that case. As judges of the Supreme Court of Canada have observed:
Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions.
It follows that a judge who, during a hearing, displays rigid adherence to stereotypical assumptions about victims of sexual assault — for example, by expressing disbelief in the evidence of a complainant who did not report promptly — may ‘produce an ineradicable apprehension of prejudgment’ in the mind of the reasonable lay observer.
The wife submits that the context of the remark does not alleviate the apprehension of bias, and the impression left is an “ineradicable apprehension” of bias that I will decide the case other than on its legal and factual merits.
The wife refers to the Australian Law Reform Commission (“ALRC”) in their August 2022 report on judicial impartiality and bias, detailing a judge’s role, which states that:
Judges should try to put themselves in the position of those appearing before them. An appearance before a court or tribunal is a daunting and unnerving experience…
Empathy is critical. As Judge Brian Doyle has said, “Empathy is a quality all judges need – it is not partisanship, but understanding how someone is reacting in a process which is alien to most people…”
Inappropriate language or behaviour likely to result in the perception of unfairness (even where there is none), loss of authority, loss of confidence in the system and the giving of offence. A thoughtless comment, throw away remark, unwise joke or even a facial expression may confirm or create an impression of prejudice. It is how others interpret the judge’s words or actions that matters, particularly in a situation where they will be acutely sensitive to both. Conversely, where people feel that they have been heard, and treated fairly, they are more able to accept an adverse outcome: procedural fairness is important for the operation of the rule of law.
Courts are, by necessity, an uneven environment. There are many legal and practical reasons why a judge is in charge of what happens in court, and must be clearly seen as such. This is why instances of judicial overreach or poor judicial behaviour in court are so damaging to confidence in the process. Although a throwaway comment may seem relatively inconsequential to those in courtrooms every day… the issues at stake for so many litigants are often of huge personal importance.
With regards to identifying the bias, the wife submits that the court’s assessment of the following factors may be affected as a result of the comment that “[medical professionals] are really very interested in money”:
(1)The value of C Company;
(2)The wife’s financial and non-financial contributions and future earning capacity under s75(2) of the Family Law Act 1975 (“the Act”); and
(3)The wife’s parenting capacity under s60CC of the Act.
Counsel for the wife was asked to expand upon this submission and identify how the alleged bias would impact any decision I make in the final hearing. In relation to the value of the business, which is likely to be a significant issue for trial, it was submitted by counsel for the wife that based on my comment, I may determine that:
…[medical professionals] are therefore miserly when it comes to spending their own money and will not pay a significant amount for the [business]. Conversely, it may be that the numbers are such that are in the valuation that the [medical professionals] will pay more for it because they see dollar signs…
And therefore Your Honour may decide that the business is worth less than it otherwise might be. Your Honour may lean towards evidence of one valuer who provides it as being less than the other valuer who provides it as being more.
With regards to the submission that it may affect my assessment of the wife’s contributions and earning capacity, counsel submitted that I may conclude that the financial contributions of the wife are less significant despite her earning a significant income because she is “really very interested in money”. Similarly, counsel submitted I may find that her non-financial contributions are less significant than the evidence otherwise suggests because her interest in money means she was likely working at every available opportunity.
Counsel for the wife also made oral submissions that my assessment of the wife’s earning capacity may be impacted:
If [medical professionals] are all in it for the money, and if there is an argument as to whether my client has a greater income earning capacity than the husband, or at least a greater income capacity than she can have as it currently is, Your Honour may very well say that’s right, [medical professionals] are really very interested in money. She might be earning $100 now, but she can earn $200 tomorrow because that’s what [medical professionals] do.
Similarly, counsel for the wife made submissions as to how the comments may impact upon my assessment of the wife’s parenting capacity:
…if she’s interested in the money, well then whenever she’s got an opportunity, she’ll go to work, she won’t care for these children, she’s in it for the money…
The husband submits that the wife is taking the comments out of context. He notes that the relevant comments were made in the context of discussing the single expert’s belief that the business had no market value, where the parties intend for it to remain a functional business which may be sold one day. He submits that the use of the word “[medical professional]” could be switched for any other profession or business owner and the comment would remain true in the context of a discussion about the market value of a business. He further notes that the comments about medical professionals were in respect of a hypothetical purchaser of C Company, and not about the wife directly.
In response to the wife’s submissions, the solicitor for the husband submitted that the attempt to connect the alleged bias to the assessment I must make of the wife’s contributions, earning capacity, and parenting capacity are not logical.
The solicitor for the husband also referred to Vakauta v Kelly (1989) 167 CLR 568, submitting that dialogue between the bar table and the judge which focuses on identifying the real issues in dispute is a useful exercise. In such circumstances, it is recognised that judges may express tentative views without it amounting to pre-judgment.
She also referred to Johnson & Johnson in submitting that the court has to take into account the role of a judge as an impartial adjudicator, and the fact that their role inherently requires the ability to put aside personal bias and decide matters based solely on the evidence.
The husband sets out the prejudice he would suffer as a result of the wife’s application being granted and if the trial date were to be lost. These include being restricted in spending time with the children pursuant to interim orders, and delays in resolving outstanding financial matters.
In response to the husband’s assertions of prejudice, the wife submits that a recusal application is not one of competing prejudices, and the potential delay of a matter due to apprehension of bias does not affect the requirements for recusal.
RELEVANT LAW
The principles relating to recusal on the ground of apprehended bias are well-established. The test for apprehended bias, articulated by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6], is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.
The High Court in Ebner noted that the principle gives effect to the idea that justice must be seen to be done, reflecting the importance of independence and impartiality.
In Johnson & Johnson, the majority of the High Court held:
[11] … It has been established by a series of decisions of this court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
[12] That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.” The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
[13] While the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
However, the High Court in Ebner at [19] made the following observation establishing that recusal must be considered in the broader context of the duties of a judge:
Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the Court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
The more recent High Court case of Charisteas v Charisteas [2021] HCA 29 at [11] provides further assistance in the question of determining whether a judge ought to recuse themselves on the ground of apprehended bias:
Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial — that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge… to decide a case other than on its legal and factual merits”; and, second, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
(footnotes omitted).
The test for bias involves the hypothetical fair-minded lay observer. This observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice” (Johnson v Johnson at [13]), but is said to have a vested understanding that judicial officers are bound by statutory and ethical obligations to act in a fair-minded manner, and decide matters according to merit, based on the evidence before the court. The test is an objective assessment and the subjective assessment of the applicant is not relevant.[1]
[1] Pearlman v WA a/Information Commissioner [2019] WASC 257 at [131]
In JRL, Re; Ex parte CJL; sub nom Renaud, Re; Ex parte CJL (ALJR) (1986) 161 CLR 342 at page 352, Mason J observed:
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ''firmly established": Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. (Citations Omitted).
CONSIDERATION
Context is all important in consideration of an application of this kind.[2] The impugned comments were made in the context of a discussion between the bar and bench regarding the nature of a business and the approaches to valuation of same. The comments were specifically made in the context of determining whether the husband should have leave to rely on further expert evidence in response to the evidence of a single expert. It also occurred in the context where the wife had filed a sworn statement of assets which had attributed a value of $500,000 to the business and where the single expert had attributed a value of $19,004 (as value to owner).
[2] Aronson, Mark & Weeks, Judicial Review of Administrative Action and Government Liability (sixth edition) P. 656 (para 3).
In my view, a reasonable observer hearing or reading the comments would understand that the court was recognising that some medical professionals who operate businesses are very interested in money and that commerciality extends to buying and selling businesses. Counsel who was appearing for the wife at the hearing recognised this as the effect of the comment because the exchange that followed related to that question of whether a business could be sold and to whom.
The discussion was focused on medical professionals and medical practitioners (in the context of the competing expert reports under discussion). In my view, the reference in submissions to substituting “women” or “Irishmen” into the relevant phrase to best establish an appearance of bias is inapt. Medical professionals were referred to as that is the type of business that was under consideration and the point was raised that commerciality is central to business and that commerciality extends to whether a business can be bought and sold.
The comments were directed at the issue of the commercial value of business generally and in considering the competing submissions made in the application that was before me.
The issues before me in that application were limited to arrangements regarding school holidays and expert evidence regarding valuation of the business.
Judgment was given on the application and leave was granted for the husband to rely on the report of Mr B. That decision has not been the subject of an application for leave to appeal. No part of those reasons have been referred to as indicating the expression of any bias against the wife or medical professionals generally.
The submission that because of the comments I made, I might hold the view that medical professionals have a tendency to be miserly and thereby make a finding that the true value of the business was less than market value is not logical. There is nothing in the words that are complained of which would tend to suggest that I would not consider the question of the value of the business on the basis of the expert evidence before me at trial.
Similarly, the expressed comment does not properly form the basis for a finding that there is any likelihood that the court will not hear and determine the issue of parenting arrangements based on the relevant evidence at trial. No submission has been made in this application that there is any evidence that the mother is or will be unable to look after her school aged children because she is a medical professional or because of her role in a business. As to her character generally, there has been no suggestion or allegation that the wife is unethical or that she provides inadequate care to her patients because of any interest in money or otherwise.
As for the determination of future needs and considering the matters in s 75(2) of the Act, I do not accept that a reasonable fair minded observer might form the view that I am unable to determine all the issues of the case on the basis of the evidence. There is a lack of logical connection with the words expressed and the submissions that I could not give consideration to the evidence on all the matters I must determine. The fact that the words were used does not lead to a conclusion that I have the appearance of a state of mind “so committed to a conclusion already formed [on the matters that must be determined at trial] as to be incapable of alteration, whatever evidence or arguments may be presented”.[3]
[3] Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [72].
I take particular note of the comments of the ALRC report extracted above. However, I do not understand that those comments represent a statement of the principles to be applied to applications of this kind as set out by the High Court in Ebner. The ALRC is properly focusing on the subjective views of litigants who may be in court where judicial conduct, such as a throwaway comment or a facial expression, may create an impression of prejudice. The ALRC extract provides a guide to judicial best practices in hearings, not an expression of the law to be applied when deciding an application of this kind. The authorities stress that the subjective view of the complaining party is not relevant.
In relation to the caution raised in the cited passage from AB v XYZ about the use of myths and stereotypes in determining issues, there is no submission that the comment influenced or affected my decision to allow the evidence of Mr B to be introduced.
The delay in bringing this application is significant, given that the matter is listed for final hearing on 27 March 2023 and the words were spoken on 11 August 2022. No objection was raised in relation to the comment at the time, and the exchange proceeded on the basis that the comment was made in the course of a discussion about the saleability of business.
A party who believes that comments or questioning by a judicial officer in the course of a hearing may give rise to an appearance of prejudgment should not let that pass without objection. Standing by and waiting until the outcome is known will usually amount to a waiver of the right to object.[4] The failure to take objection at the time meant it was not possible to refine the comment so as to avoid any suggestion of prejudgment on any issue:[5] it is plain that the comment was directed to the notion that generally speaking people engaged in business (whether they be professionals or otherwise), particularly where they are employing people, are concerned with or interested in money. It was accepted by counsel for the wife in the course of submissions in this application that had a comment to that effect been made, there could be no cause for complaint, but what I did “took it one step further”.
[4] Vakauta v Kelly (Brennan, Deane and Guadron JJ) at pg 572 and AB v XYZ at [39].
[5] Johnson v Johnson at [14].
It is unlikely that the matter will be able to be listed for trial in the next six to 12 months before another judge. That delay cannot be in the best interests of the children of the parties or the parties themselves.
CONCLUSION
I bear in mind that a judge should not accede to a request for recusal readily. I am not persuaded by the submissions put on behalf of the wife that a fair minded observer would believe that I could not determine the issues at trial in accordance with the evidence, free of bias.
I dismiss the application filed 7 November 2022 and reserve the question of the husband’s costs to the trial.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 9 February 2023
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