Martin v Hillier

[2021] FCA 800

FEDERAL COURT OF AUSTRALIA

Martin v Hillier [2021] FCA 800

Appeal from: 

Application for leave to appeal:  Hillier v Martin(No 4) [2021] FCA 710

File number:

SAD 137 of 2021

Judgment of:

BESANKO J

Date of judgment:

15 July 2021

Catchwords:

PRACTICE AND PROCEDURE — application for leave to appeal — disqualification for apparent bias — where judge was a member of a Full Court that delivered judgment that was strongly critical of the applicant’s husband’s conduct — where applicant’s husband’s conduct will or may be an issue on the application for leave to appeal — order that application for leave to appeal be heard by another judge of the Court

Cases cited:

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Martin v Norton Rose Fulbright Australia [2019] FCAFC 234

Division:

General Division

Registry:

South Australia

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Number of paragraphs:

12

Date of last submissions:

13 July 2021

Date of hearing:

Determined on the papers

Counsel for the Applicant:

Mr S Ower QC

Solicitor for the Applicant:

Norman Waterhouse

Counsel for the Respondent:

Mr R Whitington QC with Mr D O’Leary

Solicitor for the Respondent:

Sykes Bidstrup

ORDERS

SAD 137 of 2021

BETWEEN:

VICTORIA MARTIN

Applicant

AND:

JAMES HILLIER

Respondent

ORDER MADE BY:	BESANKO J
DATE OF ORDER:	15 JULY 2021

THE COURT ORDERS THAT:

1.The application for leave to appeal be allocated to another judge of the Court.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

1. The principles governing disqualification for apparent bias are set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner). Gleeson CJ, McHugh, Gummow and Hayne JJ identified the governing principle as follows (at 344):

   …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.

   Their Honours identified the two steps in the application of the principle as first, the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, and secondly, an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits (at 345).

2. An application for leave to appeal by Victoria Martin in SAD 137 of 2021 (Victoria Martin v James Hillier) was allocated to me in the normal course.  The application was for leave to appeal from orders made in a proceeding by another judge of this Court in relation to discovery and production of documents.  Those orders were made on 25 June 2021 and are supported by reasons (Hillier v Martin (No 4) [2021] FCA 710). The orders with respect to which leave to appeal is sought relate to the scope…