Jess & Jess

In the matter of Mr Jess Jnr and Mr Ban (the appellants) and Ms Jess and Mr J in his capacity as the legal personal representative of the late Mr Jess Snr (the respondents), the Appeal Division of the Family Court of Australia was required to determine whether leave to appeal a declaration made by the primary judge was necessary. The declaration was that a deed of declaration of trust (DODT) was not executed on the date it bore. The appellants sought leave to appeal from the declaration, arguing that it was interlocutory and not final, and that the primary judge had not finally determined the rights of the parties. The court held that leave to appeal was required, as the declaration did not finally determine the rights of the parties and was more akin to a finding of fact. The court also dismissed the appellants' appeal against the primary judge's findings of fact, holding that there was sufficient evidence to persuade the primary judge that the DODT was not executed on the date it bears.

Further, the court was required to determine whether leave to appeal from the dismissal of a disqualification application was necessary. The primary judge had dismissed the appellants' application to disqualify themselves on the basis of apprehended bias, but the court held that leave to appeal was required, as the dismissal was interlocutory and not final, and the decision was attended by sufficient doubt to warrant it being reconsidered. The court also held that the primary judge misapplied the test of apprehended bias, as she focused on whether the fair-minded lay observer would have agreed with her adverse findings rather than what that observer might reasonably apprehend. The court further held that the appellants had waived their right to seek the primary judge's recusal, as they did not raise waiver as an applicable exception to apprehended bias before the primary judge.