Strahan & Strahan (Disqualification)

The appeal before the court involved a dispute between a husband and wife concerning family law matters, specifically the disqualification of a judge presiding over the case. The wife sought the disqualification of Justice Strickland, who had previously employed her in 1981 while he was a practising solicitor. The wife's employment was terminated due to unsatisfactory performance, and she intended to introduce evidence during the property settlement proceedings that she assisted the husband in developing a successful business. The court was required to decide whether Justice Strickland should have disqualified himself due to apprehended bias, whether the decision to disqualify was discretionary, and whether the wife had waived her right to seek disqualification.

The court considered the test for disqualification set out in Ebner v Official Trustee in Bankruptcy, concluding that decisions regarding disqualification are not discretionary but require the judge to apply governing principles to the facts without any latitude of individual choice. The court found that the wife had not waived her right to seek disqualification, despite the considerable time that passed between when she first expressed concerns and when she made her application. The wife provided an adequate explanation for the delay, and the court accepted that she was unaware of her rights regarding this issue. The court found that the wife had established a real likelihood of bias on the part of Justice Strickland, and thus the appeal was allowed, and the matter was to be listed before a different judge.

The court also considered the issue of costs, noting that the appeal had been successful, and an order for cost certificates would be inappropriate considering the parties' wealth, the amount they had spent on litigation, and the extent to which public resources had been made available to them in providing a forum for their dispute. The court made no order as to costs between the husband and the wife but ordered that they bear equally the costs of the Independent Children's Lawyer, such costs to be calculated pursuant to the Legal Services Commission of South Australia scale plus 25 per cent.