KRUGER & KRUGER

In the Family Court of Australia, Mr Kruger (the applicant husband) and Ms Kruger (the respondent wife) were involved in proceedings concerning a costs order made by the Full Court. The husband sought an extension of time to serve an itemised costs account, arguing that to refuse this would result in an injustice. The wife opposed this, and the court also considered an application for recusal.

The court was required to determine two primary legal issues. Firstly, whether to grant the husband an extension of time to serve his itemised costs account, considering the potential for the rules to visit an injustice upon him. Secondly, the court had to consider whether it, as currently constituted, could be seen to be totally impartial, necessitating a discussion of High Court authorities on judicial neutrality and impartiality.

Regarding the costs account, the court reasoned that the Full Court's order requiring parties to seek an agreed cost assessment, coupled with the husband's solicitor's difficulties in obtaining the file and preparing the account, created a situation where strict adherence to the rules would cause injustice. The court applied the principle that the interests of justice override strict adherence to procedural rules when an injustice would otherwise occur, referencing *Gallo v Dawson*. The court also acceded to the wife's application for recusal, finding that having published previous judgments that touched upon the parties' credibility, it could not be seen to be totally impartial, citing *British American Tobacco Services Ltd v Laurie* and *Ebner v Official Trustee in Bankruptcy* for the principle that the appearance of impartiality is paramount.

Consequently, the court ordered that the husband's time for service of the itemised costs account be extended to 6 June 2011, and the wife's time to file a notice of dispute be extended by 28 days. Furthermore, a recusal order was made, adjourning the further hearing of the applications to a date in 2012 before a different judge.