Yushkova v Cook

1. The hearing of the appeal on 24 April 2023 be adjourned.
2. By 4:00 pm AEST on 3 May 2023, the Respondents file electronically a supplementary appeal book containing the affidavit evidence that was before the primary judge in the proceedings the subject of the appeal.
3. By 4:00 pm AEST on 5 June 2023, the Appellants file and serve a written outline of submissions, identifying specifically, by reference to the appeal book, the evidence on which they rely to support their grounds of appeal.
4. By 4:00 pm AEST on 26 June 2023, the Respondents file and serve any further written outline of submissions.
5. By 4:00 pm AEST on 17 July 2023, the Appellants file and serve any reply to the further written submissions of the Respondents.
6. The appeal be listed for hearing as directed by this Court.
7. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DERRINGTON J: 1 This is an appeal from a decision of the Federal Circuit and Family Court (Division 2). It has been set down for some time for hearing today, 24 April 2023. This morning, the first appellant, Ms Yushkova, sent an email to my Chambers indicating that she had some concerns as to whether I should hear the appeal. In her email, she has, perhaps mistakenly, assumed that I am to hear an appeal from myself. As a matter of fact, the appeal is not from my own decision, but from a decision of Judge Vasta of the Federal Circuit and Family Court (Division 2). However, on 31 January 2023, I heard an application by Ms Yushkova in this proceeding, by which she sought a stay to prevent the respondent bankruptcy trustees from selling certain real estate in which she has an interest, pending the determination of the appeal. 2 In the court below, it was determined that the second appellant, Mr Jeremy King, was in a relationship with Ms Yushkova and had an interest in that real property. It is his trustees in bankruptcy who intend now to sell the property, on the basis that Mr King's interest in it has passed to them consequent upon the making of sequestration orders. In relation to Ms Yushkova's application for a stay of the sale, it was held that, as a result of her failure to adduce any evidence of the critical factual matters underpinning her grounds of appeal, she had not demonstrated at the time of the hearing that there was an arguable case on appeal. Put another way, she had not demonstrated that any of her grounds of appeal had a rational prospect of success. That is not a criticism of Ms Yushkova, who sought to represent herself and was not assisted before this Court by any qualified lawyer. A perusal of my reasons for judgment on that application, being Yushkova v Cook (Trustee), in the matter of the bankrupt estate of King [2023] FCA 77, reveals the type of evidence that was required to be put on, or at least would usually have been put on, to support the grounds of appeal that Ms Yushkova raises. 3 For instance, Ms Yushkova has complained about the behaviour of the learned primary judge, but no transcript of the first-instance hearing was available before me on the application. Today, Ms Yushkova has mentioned that she has been unable to afford a copy of the transcript. Nevertheless, in the absence of that evidence, I was not able to ascertain whether her complaint about the conduct of the primary judge had any merit. Similarly, Ms Yushkova wished to criticise certain findings of the primary judge as to her credit and the credit of Mr King. Unfortunately, as my earlier judgment recognised, in the absence of any evidence as to the contents of her affidavits or Mr King's affidavits in the court below, or a transcript of their cross-examination before the primary judge, it was not possible to make any determination as to the merits of that matter either. 4 As a consequence of that want of evidence, my earlier decision concluded that Ms Yushkova had failed to establish any factual basis for the grounds of her appeal. She was unable to satisfy the Court that she had any arguable point on appeal and so her application for a stay was dismissed. 5 Subsequently, the substantive appeal that Ms Yushkova and Mr King now pursue was allocated to my docket. Of course, there is no irregularity in that outcome. One might reasonably have thought that the issues to be determined on the appeal would be different to those relevant to the application for a stay. In particular, it might have been thought that Ms Yushkova would, in light of the result of the stay application, have realised the necessity of putting before the Court some evidence to establish the factual basis for her grounds of appeal and the submissions that she wished to make. 6 Had she done so, then the substance of the appeal could now be determined. The hearing and resolution of the issues on appeal would be substantially different to the determination of the prior issues on the application for a stay, particularly since that application was dismissed merely on the basis of an absence of evidence, as I have mentioned. However, it is apparent that Ms Yushkova did not appreciate the substance of my observations in my prior reasons as to the need for evidence. She did not seek to include in the appeal book for the purposes of the hearing due to take place today any of the evidential material before the primary judge, or the transcript of the first-instance hearing. She also did not seek to rely upon any affidavit evidence explaining her complaint to the effect that she had not been given an opportunity to respond to points raised by the primary judge in the hearing in the court below. 7 The consequence of these most unusual circumstances is that, if I were to hear and determine the appeal today, I could not reach any conclusion other than that which I reached previously in respect of the application for a stay. Once again, there is no evidence before this Court as to what occurred at the trial, or what evidential material was adduced there. Accordingly, it is entirely open to me to make precisely the same determination that I made on the prior application. This gives rise to a grave difficulty, in that the issues now arising are ones upon which I have already reached and published my concluded views. Were I to hear the appeal today, I would necessarily reach the same conclusion. 8 Ms Yushkova has asked that I recuse myself from the hearing of the appeal because it might reasonably be thought that I have prejudged the issues. 9 On that topic, there are some important decisions of the High Court of Australia to which I must refer. The first is British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283. In that case, the plurality, Heydon, Kiefel and Bell JJ, observed at 331 - 332 [139] - [140]: 139 It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public's perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature. 140 Of course judges are equipped by training, experience and their oath or affirmation to decide factual contests solely on the material that is in evidence. Trial judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence. Routine rulings of this nature are unlikely to disqualify the judge from further hearing the proceeding. This is not a case of that kind. It does not raise considerations of case management and the active role of the judge in the identification of issues with which Johnson was concerned. At issue is not the incautious remark or expression of a tentative opinion but the impression reasonably conveyed to the fair-minded lay observer who knows that Judge Curtis has found that BATAS engaged in fraud and who has read his Honour's reasons for that finding. … (Footnotes omitted). 10 More recently, in Charisteas v Charisteas (2021) 273 CLR 289, the High Court, in a unanimous joint judgment, observed at 296 - 297 [11] that: Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that "a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial - that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits"; and, secondly, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed. 11 That last paragraph deals with a slightly different question, but it serves to make clear that the underlying principle at work here is concerned not only with the actual independence and impartiality of a judge, but with the apprehension of litigants and the public that judges are independent and impartial. 12 As has been mentioned, in the circumstances of the present case, which are most unusual, were I today to proceed to hear the appeal, I would, in substance, if not in form, have to determine a question that I have already once decided: that is, whether there is any merit in Ms Yushkova's grounds of appeal, absent evidence to support them. 13 Having given this question considerable thought in connection with the prior application, and having made my rulings there, it is inconceivable that I might now reach a different conclusion. 14 A fair-minded lay observer might therefore, quite reasonably, question whether I could bring an impartial mind to the issues on appeal, given that I have effectively already decided them, in identical circumstances. I accordingly accede to Ms Yushkova's request that I recuse myself from the appeal, and I do so. I will make an order that the appeal be adjourned to another date for hearing. 15 It should be recognised that these are most unusual circumstances, and they almost certainly would not have arisen had Ms Yushkova been assisted by solicitors. Properly represented, she might have realised the necessity of putting into evidence the material relevant to her various grounds of appeal. Because she did not, I find myself in the unusual situation where I am faced with the prospect of having to decide the merits of the appeal without recourse to evidence. For the reasons set out above, it is improper for me to do so. 16 The matter has accordingly not proceeded today and is to continue instead at a later date before another judge. For that reason Ms Long for the respondent trustees has asked that her clients have their costs. One can understand the reasons for that, given that her clients bear no fault for the matter falling over today. However, in the peculiar circumstances, where a lack of evidence continues to shroud the potential merits of the appeal, I think it more appropriate that the question of the costs of today be determined by the judge who hears the appeal. Therefore, costs are reserved. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.