Polo and Polo and Ors (No. 2)

The proceedings involved Mrs Polo (applicant wife) and Mr Polo and others (respondents), including their adult children and a company, concerning property settlement. A final hearing had commenced before Justice Finn of the Family Court of Australia. The dispute escalated when the judge became aware that his daughter, an architecture student undertaking work experience, was employed by a firm that had the husband and son as current clients. This situation was particularly relevant as a significant issue in the case concerned the husband's involvement in building and development operations carried on by a company owned by his son.

The central legal issue before the court was whether the judge should disqualify himself from hearing the property settlement proceedings. This arose from the potential for a reasonable apprehension of bias or pre-judgment, given the judge's daughter's professional connection to the husband and son, who were parties to the litigation and involved in a business that was a subject of dispute. The court was required to balance the principle of impartiality and public perception of justice against the significant costs and inconvenience to the parties of discontinuing the hearing.

Justice Finn applied the principle articulated in *Livesey v The New South Wales Bar Association* (1983) 151 CLR 288, stating that a judge should not sit if there is a reasonable apprehension that they might not bring an impartial mind to the resolution of the case. He also drew upon the reasoning in *GIO v Bailey* (1992) 27 NSWLR 304, which concerned the importance of judicial decisions being based solely on evidence presented during the trial and the principle of "fair play and common sense" in ensuring parties have an opportunity to address any external information a judge may have. Despite disclosing the information to the parties and acknowledging that lawyers understand the concept of a judge disregarding extraneous information, Justice Finn concluded that the parties could not be certain of the exact context or content of the information he had received from his daughter. Therefore, to uphold the interests of the perception of open justice, he determined that he must disqualify himself, albeit with great reluctance.

Consequently, the final hearing was discontinued, and a new hearing was ordered to be fixed. The court certified the matter as proper for the attendance of counsel, including Senior Counsel. Furthermore, costs certificates were granted to the applicant wife, the husband and fourth respondent, and the second, third, and fifth respondents, pursuant to s 10(3) of the *Federal Proceedings (Costs) Act 1981*, allowing for the Attorney-General to consider authorising payment of costs incurred in relation to the discontinued proceedings.