Appeal and new trial – judge excessively, unduly and improperly intervened…

…appeal from two judgments of the Federal Circuit and Family Court of Australia (Division 2)

In Security & Technology Services (NT) Pty Ltd v Hurley [2022] FCAFC 90 (18 May 2022), the Full Bench of the Federal Court (Katzmann, O’Callaghan and Thomas JJ) allowed by consent a ground of appeal which concerned the primary judge’s conduct of the trial at the Federal Circuit and Family Court of Australia (Division 2) (at [4] and [16]).

The appellant argued that the appellant was denied procedural fairness because the primary judge excessively, unduly and improperly intervened in the conduct of the trial (at [4]).

The primary judge’s conduct at the trial included: the imposition of capricious time limits on the cross-examination of witnesses (at [8]); the aggressive cross-examination of the appellant’s witnesses by the primary judge relying on case theories that favoured the respondent but that had not been raised by the respondent (at [9]); the failure to call on counsel for the respondent to make closing submissions and instead compelling the appellant to proceed directly to submissions (at [10]); and interruption of the appellant so as to prevent the appellant from fully developing the submissions that the appellant wished to make (at [11]).

The Full Bench held that the primary judge’s conduct caused a miscarriage of justice (at [7]) and remitted the matter for retrial (at [13]).

Nadia Stojanova is a barrister at the Victorian Bar, ph 0480 254 662 or email The full version of these judgments can be found at Numbers in square brackets refer to a paragraph number in the judgment.

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