McGinn v Department of Family and Community Services (No 2)

In the matter of McGinn v Department of Family and Community Services (No 2), the plaintiff, McGinn, sought to challenge the decision of the Federal Circuit Court to dismiss an application to set aside a summary dismissal of the plaintiff's proceedings against the Department of Family and Community Services. The plaintiff's initial proceedings were summarily dismissed, and this decision was subsequently upheld by a different judge in relation to the application to set aside the summary dismissal. The plaintiff then sought to have the judge who dismissed the application to set aside the summary dismissal recuse himself from determining the question of costs, arguing that the judge was actually biased due to various alleged errors in the determination of the application. The plaintiff also argued that the judge should be recused because of an error in the determination of the application.

The court considered whether the plaintiff's allegations of error were sufficient to establish actual bias and found that they were not. The court held that the judge had not displayed any actual bias in the determination of the application to set aside the summary dismissal. The court further held that the plaintiff's assertions of error in the determination of the application were more appropriately determined on appeal, rather than in an application for recusal. The court held that the plaintiff was entirely unsuccessful in the second proceedings, and there was no basis for altering the general rule that the defendant, as the successful party, should have an order for costs in its favour.

The court dismissed the plaintiff's application for recusal and ordered that the defendant be entitled to its costs of the second proceedings. The court held that the plaintiff's application for recusal was an abuse of process and that the plaintiff should not be compensated for the costs of that application. The court ordered that the plaintiff pay the defendant's costs of the second proceedings on an indemnity basis, and that the plaintiff's application for recusal be struck out. The court held that the defendant was entitled to an order for costs in its favour in relation to the second proceedings, and that the plaintiff was not entitled to any costs in relation to those proceedings.