…appeal from two judgments of the Federal Circuit and Family Court of Australia (Division 2)
In Security & Technology Services (NT) Pty Ltd v Hurley  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  and ).
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 ).
The primary judge’s conduct at the trial included: the imposition of capricious time limits on the cross-examination of witnesses (at ); 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 ); the failure to call on counsel for the respondent to make closing submissions and instead compelling the appellant to proceed directly to submissions (at ); and interruption of the appellant so as to prevent the appellant from fully developing the submissions that the appellant wished to make (at ).
The Full Bench held that the primary judge’s conduct caused a miscarriage of justice (at ) and remitted the matter for retrial (at ).
Nadia Stojanova is a barrister at the Victorian Bar, ph 0480 254 662 or email email@example.com. The full version of these judgments can be found at austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.