Lukatela v Apostoloff [2009] ACTSC 11 (6 February 2009)

Last Updated: 16 March 2009

IVAN JOSIP LUKATELA v JOANNA THETA APOSTOLOFF

[2009] ACTSC 11 (6 February 2009)

EX TEMPORE JUDGMENT

No. SCA 115 of 2007

Judge: Higgins CJ

Supreme Court of the ACT

Date: 6 February 2009

IN THE SUPREME COURT OF THE )

) No. SCA 115 of 2009

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: IVAN JOSIP LUKATELA

Applicant

AND: JOANNA THETA APOSTOLOFF

Respondent

ORDER

Judge: Higgins CJ

Date: 6 February 2009

Place: Canberra

THE COURT ORDERS THAT:

1. The application in proceedings filed by the Appellant be granted.

1. Applications of this kind are always very difficult to deal with. In one sense, there is a conflicting state of mind in relation to it. It is always engendered in the mind of a judicial officer on the one hand, if the parties, or one of the parties, is objecting to the judge hearing the matter, and has some reasonable basis for doing so, ordinarily the judge would say, well, let us avoid the question as to whether it is mandatory to exclude one’s self from the hearing and do so, so that each party will be confident that the judicial officer before them could not be questioned in a higher court.

2. There is that too. If I was to decline to disqualify myself wrongly then there would be an appeal to the Court of Appeal. If I had done so wrongly, an appeal would be upheld and the matter would then be further delayed by coming back to this court again, at a much later time. Manifest inconvenience is then caused to all parties, not just the Crown, but to all parties.

3. On the other hand, the court has a duty to hear a matter that is properly before it. Tentative views may be expressed in the course of whatever preliminary procedural matters are necessary to get the matter, or, as it is in this case, appeal, ready for hearing.

4. Now there is an analogy here I think, and that is perhaps in the case of a plea of guilty that is rejected on the grounds that some issue appears to have arisen that did not previously appear to the counsel involved. I refer in particular to the case of Cook where I took such a view in relation to a plea of guilty that was tendered before me on the charge of manslaughter. It seemed to me there were arguable grounds for asserting self defence in that case.

5. I do not think I put it any more highly than that, but an application was made by the then Director that I should disqualify myself on the grounds that having taken the view that there was a viable argument about that defence, that bias, might be apprehended in the relevant legal sense. Not as an actual bias, but as a possible bias in the view of a hypothetical lay observer.

6. I did accede to the application in that case, on the basis that the administration of justice was indeed better served by that decision. It seems to me that the present case, although marginal, does by that small margin, fall within the same category. I am therefore, prepared to accede to Mr White’s application.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 20 February 2009

Counsel for the Applicant: Mr J White

Solicitor for the Applicant: Director of Public Prosecutions for the ACT

Counsel for the Respondent: Mr J Purnell SC

Solicitor for the Respondent: Porters Lawyers

Date of hearing: 6 February 2009

Date of judgment: 6 February 2009