Viscariello v Tamasauskas (No 2)

The parties involved in the case are Mr Viscariello and Mr Tamasauskas, with the latter being the administrator of the estate of the late Mr Phillips. The dispute revolves around allegations of breaches of duty and retainer by Mr Phillips, who was Mr Viscariello's counsel in previous proceedings. Mr Viscariello, a former legal practitioner, is representing himself in the District Court proceedings and seeks to appeal a decision and request the judge's disqualification. The legal issues before the court include whether there was a reasonable apprehension of bias on the part of the judge due to a familial relationship with a solicitor from a firm representing the defendant, and whether the judge should recuse themselves from deciding the issue of costs related to the application for permission to appeal. The court's reasoning focuses on the lack of clear articulation of what aspects of the judge's treatment of the appeal issue would indicate a lack of impartiality. The judge concludes that the familial association, along with other matters, does not provide a basis for a reasonable apprehension of bias. Consequently, the court refuses to set aside the order dismissing the application for permission to appeal and declines to disqualify itself. The court will proceed to hear the parties regarding the costs of the application for permission to appeal and the present application.

The court carefully considered the nature of the allegations and the evidence presented by Mr Viscariello. The judge accepted Mr Viscariello's evidence about the timing of his knowledge regarding the familial relationship and the unresolved complaints against the solicitors. However, the judge found that the nature of the judge's treatment of the appeal issue did not indicate any lack of impartiality. The judge's conclusion was based on the absence of a clear articulation of what specific aspects of the judge's reasoning would suggest bias. The court emphasized that even if there was an error in the treatment of the issue, it would not alone establish a reasonable apprehension of bias. The judge was not satisfied that the familial association, combined with the other matters, provided a basis for concluding that a fair-minded lay observer might reasonably apprehend bias. As a result, the court's order stands, and the judge will not recuse themselves from deciding the issue of costs.