McCardle v Johnson [2021] FCA 1528

McCardle v Johnson [2021] FCA 1528

The adjournment was refused because the applicant had filed multiple submissions and affidavits, had prepared detailed notices to admit and further material despite claiming illness, had no independent medical evidence showing she could not participate remotely or represent herself, and the interlocutory application could be determined on the papers without further delay. Recusal was refused because the alleged vaccination comment was not substantiated, the applicant's subjective belief was irrelevant, no logical connection to partiality was shown, and the statement that the Court would not decide the truth of pleaded fraud allegations on the interlocutory application was a correct...

Jurisdiction
Australia
Judgment Date
29 November 2021
Procedural Posture
Practice and Procedure; Interim Application in Proceeding Involving First Respondent's Interlocutory Application for Summary Dismissal or Strikeout and Security for Costs / Applicant's Interim Application for Adjournment and Recusal Heard on 29 November 2021; First Respondent's Interlocutory Application to Be Determined on the Papers
Outcome
Applicant's interim application filed 26 November 2021 dismissed; costs awarded to the first respondent; second respondent's name amended; compliance with rules for notices to admit dispensed with until further order; other costs reserved.
Legal Topics
['adjournment Due to Illness' 'recusal' 'apprehended Bias' 'summary Dismissal' 'strikeout' 'security for Costs' 'notices to Admit' 'costs']
['practice and Procedure' 'bankruptcy and Insolvency'] ['adjournment Due to Illness' 'recusal' 'apprehended Bias' 'summary Dismissal' 'strikeout' 'security for Costs' 'notices to Admit' 'costs']

Case Brief

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Procedural Posture

Practice and Procedure; Interim Application in Proceeding Involving First Respondent's Interlocutory Application for Summary Dismissal or Strikeout and Security for Costs / Applicant's Interim Application for Adjournment and Recusal Heard on 29 November 2021; First Respondent's Interlocutory Application to Be Determined on the Papers

Legal Issues

  1. 1 ["Whether the first respondent's interlocutory application should be adjourned because the applicant said she was ill and wanted to appear in person and tender documents." 'Whether Downes J should recuse herself because of an alleged unfinished statement about COVID-19 vaccination and a statement that the Court would not decide fraud allegations on the interlocutory application.' "Whether requirements to comply with the Federal Court Rules 2011 (Cth) in relation to the applicant's notices to admit should be dispensed with until further order."]

Ratio Decidendi

The adjournment was refused because the applicant had filed multiple submissions and affidavits, had prepared detailed notices to admit and further material despite claiming illness, had no independent medical evidence showing she could not participate remotely or represent herself, and the interlocutory application could be determined on the papers without further delay. Recusal was refused because the alleged vaccination comment was not substantiated, the applicant's subjective belief was irrelevant, no logical connection to partiality was shown, and the statement that the Court would not decide the truth of pleaded fraud allegations on the interlocutory application was a correct...

Court Disposition

Applicant's interim application filed 26 November 2021 dismissed; costs awarded to the first respondent; second respondent's name amended; compliance with rules for notices to admit dispensed with until further order; other costs reserved.

Orders

  • ["The Applicant's interim application filed 26 November 2021 is dismissed." "The Applicant is to pay the First Respondent's costs of and incidental to the interim application filed 26 November 2021." 'The name of the Second Respondent is amended to be "Inspector-General in Bankruptcy".' 'Pursuant to r 1.34 of the...