Xuarez & Vitela (No. 2)

In the Family Court of Australia, the appellant, Xuarez, sought to appeal against two decisions made by Forrest J. The first was the dismissal of a recusal application where Xuarez sought the primary judge’s disqualification from further hearing the matter on the basis of apprehended bias. The second was the dismissal of a review application against a registrar’s decision to refuse to immediately list the application for an undefended hearing. The primary judge found that the fictional bystander would not apprehend bias, and the registrar’s decision was not amenable to review.

The central legal issue before the court was whether the primary judge erred in dismissing the recusal application and whether the appeal against the dismissal of the review application was competent. In addressing the recusal application, the court considered whether the primary judge’s conduct exhibited bias or whether a reasonable observer would apprehend bias. Regarding the review application, the court had to determine if the order refusing to list the application for an immediate hearing was a decree, which would render it non-appealable.

The court dismissed the appeal against the recusal application, finding no grounds for the primary judge’s disqualification. The court reasoned that there was no basis to conclude that the fictional bystander would apprehend bias in the primary judge’s conduct. Furthermore, the court found the appeal against the review application incompetent, as the order was not amenable to appeal and was considered a decree. Consequently, the application for leave to appeal was dismissed, and there was no order as to costs.