Federal Court of Australia

Yushkova v Cook (Trustee) in the matter of the bankrupt estate of King (No 3) [2023] FCA 1027

ORDERS

THE COURT ORDERS THAT:

1.    Ms Larisa Yushkova’s application for recusal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT

THOMAS J:

1    At the case management hearing on 26 July 2023, the matter was set down for hearing today.

2    Ms Larisa Yushkova, the appellant in these proceedings, sent an email to the Queensland Registry of the Federal Court of Australia at 10.11 pm on 22 August 2023 in the following terms:

I strongly object to Judge Thomas presiding in the case QUD401/22, as he would be influenced by his previous Orders.

1. Judge Thomas has pre-judged the case, stating in Paragrah 112 of his Order, 25 July 2023, ‘The dispute in this case is over ownership of the Helensvale property between Ms Yushkova and the Joint Trustee.....’ This is absolutly incorrect, as Judge Vasta in his Order, 28 July 2022, stated that first, intention in purshase is required by both Larisa Yushkova and Jeremy King alone.

2. Judge Thomas has made a factual error, Paragrah 2 in his Order, stating, ‘Jeremy David Allen King was an alias for Jerome King ’.

3. Judge Thomas cannot now determine perjury as he has already made a decision naming Jeremy as an alias. Judge Thomas cannot contradict his own decision.

4. Judge Thomas dismissed Jeremy King in appealing, although he has standing and entitlement from his intention of purchase as determined by Judge Vasta, and standing in determination of not an alias.

(errors in original)

3    And then the final point, paragraph number 5, dealt with the question of adjournment so it is not relevant to the current issue.

4    Ms Yushkova continued:

The appeal must be heard by a Judge who will give a fair hearing to all the evidence presented into court, to avoid the errors of former Judges who did not look at all the evidence, so the facts of case were twisted or even completly dismissed.

Larisa Yushkova

(error in original)

5    The Court responded saying that, if Ms Yushkova was seeking to make an application that I recuse myself from the hearing of the matter, the application should be made on 24 August 2023 at the time set down for the hearing of the appeal.

6    As a consequence of that, Ms Yushkova emailed the Registry overnight with a document headed “Application for Judge Thomas to Recuse Himself from the Proceeding”. This contained two paragraphs as follows:

1.    We request Judge Thomas to recuse himself from the proceeding as he may be influenced by his previous decision in his Court Order, such as stating Jeremy David Allen King is an alias when his passport has been filed into Court, the disallowing of his submissions into Court when he has standing and entitlement in the subject property as at acquisition date, and, as for even all previous Judges, to absolutely ignore bankruptcy is under the threshold of $5,000.

2.    Judge Thomas stating, as with previous Judges, Jeremy is an alias. The Respondents filed into Court that Jeremy David Allen King is an alias, after being personally served by a Court Bailiff of his passport, this enabling seizure of a million dollar property on a debt of under the threshold of $5,000 bankruptcy, this being perjury for entitlement over the pervious six years.

(errors in original)

7    Ms Yushkova is correct in concluding, in the email of 10.11 pm on 22 August 2023, that the appeal must be heard by a judge who will give a fair hearing.

8    As was said in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 95 ALJR 128; [2021] HCA 2 at [80] (per Edelman J), a judge must approach the exercise of their jurisdiction in a manner that is, and must be seen to be, independent and impartial.

9    The position of the judge was also considered in the recent High Court decision of Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11] (per Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ):

“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”.

10    So that is the basic test.

11    Judicial officers have a duty to discharge their duty to sit and, in exercising their jurisdiction, must do so in a manner that is, and is seen to be, independent and impartial. A judicial officer should not adopt the approach that the officer should automatically disqualify herself or himself whenever requested by one of the parties to do so and should not disqualify herself or himself unless substantial grounds are demonstrated.

12    As was said in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294:

[I]t would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do …

13    In relation to the situation where the judge has published earlier reasons in the matter, as Mason J observed in Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 352:

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established” … Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

(citation omitted)

14    Disappointment with the decision made by a judge does not, therefore, give rise to a conclusion that it was arrived at as a result of bias. The question is whether any fact has been raised by the appellant which could lead a fair-minded lay observer to consider that any actual or apprehended bias could create a real possibility that the mind of the judge would be closed or prejudiced against the appellant.

15    When considering the question of recusal, it is necessary for Ms Yushkova to identify what it is said might lead me not to decide the case on its factual and legal merits and “there must be an articulation of the logical connection between the matter [raised by Ms Yushkova] and the feared deviation from the course of deciding the case on its merits” (Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ).

16    Ms Yushkova asserted in the first point of her email of 10.11 pm on 22 August 2023 that I have pre-judged the case and, in that respect, made reference to [112] of the reasons which I published in relation to Mr King (Yushkova v Cook (Trustee) in the matter of the bankrupt estate of King (No 2) [2023] FCA 846). The part of [112] on which Ms Yushkova has said she really focused was: “The dispute in this case is over the ownership of the Helensvale property between Ms Yushkova and the joint trustees in whom the property has vested”.

17    Ms Yushkova makes the point that this is a central and important issue, that is, the question of ownership and the question of whether the dispute is between Ms Yushkova and the trustees, and Ms Yushkova’s submission is that the question is between Ms Yushkova and Mr King and their intentions at the time that they acquired the property and, as they acquired the property well before the trustees were appointed, it is not a matter of the dispute between the trustees and Ms Yushkova. I think that is the argument that Ms Yushkova put. Ms Yushkova said that there was no question of ownership between Ms Yushkova and the trustees.

18    Of course, that section in the reasons did not involve any finding. It was a comment made by reference to the parties in the proceedings which appears from the Court documents, including the fact that it was an appeal in which the opposing parties were Ms Yushkova and the trustees.

19    In my opinion, no logical connection is articulated between the contents of the first point and the feared deviation by me in the course of deciding the current proceedings on their merits.

20    The second point in her email of 10.11 pm on 22 August 2023 stated: “‘Judge Thomas has made a factual error, Paragrah 2 in his Order, stating, ‘Jeremy David Allen King was an alias for Jerome King ’” (errors in original).

21    Paragraph 2 was as follows:

On 16 September 2019, Mr Brett Harrison, the trustee of the bankrupt estate of Mr Jerome King (trustee), applied to the Court for declarations that Jeremy David Allen King was an alias for Jerome King and that Jerome King had a legal and beneficial interest in a property described as Lot 801 on Registered Plan 162672 with title reference 15771110 situated at 13 Bairnsdale Court, Helensvale in the State of Queensland (the Helensvale property), which was registered to Jeremy David Allen King and Ms Larisa Ivanovna Yushkova as joint tenants.

(emphasis in original)

22    As is obvious from the words of that paragraph, there was no conclusion or finding that Jeremy David Allen King was an alias for Jerome King. The words used simply describe the declarations which were sought in the Court below.

23    My conclusion is that there is no logical connection articulated between the contents of the second point and the feared deviation by me from the course of deciding the current proceedings on their merits.

24    The third point in her email of 10.11 pm on 22 August 2023 stated: “Judge Thomas cannot now determine perjury as he has already made a decision naming Jeremy as an alias. Judge Thomas cannot contradict his own decision”.

25    As mentioned above, there is no decision or finding evident from my reasons for judgment that Jeremy David Allen King was an alias for Jerome King. Judge Jarrett (as he then was) of the Federal Circuit Court of Australia (as it then was before joining with the Family Court of Australia to form the Federal Circuit and Family Court of Australia (Division 2)) ruled that Jeremy David Allen King was an alias of Jerome King and that they were the same person (Harrison (Trustee) v King (Bankrupt) [2021] FCCA 185).

26    This is evident, as I think Ms Yushkova pointed to, from [6] of my reasons for judgment. I note that this was not appealed by Mr King.

27    In my opinion, no logical connection is articulated between the contents of the third point and the feared deviation by me from the course of deciding the current proceedings on their merits.

28    In the fourth point of her email of 10.11 pm on 22 August 2023, Ms Yushkova stated: “Judge Thomas dismissed Jeremy King in appealing, although he has standing and entitlement from his intention of purchase as determined by Judge Vasta, and standing in determination of not an alias”.

29    Point 4 reveals dissatisfaction with my earlier decision which involved Mr King. As I indicated earlier in these reasons, disappointment with the decision of a judge does not of itself give rise to the conclusion that the judge will approach the proceedings with a closed mind or be prejudiced against the appellant.

30    Again, in my view, there is nothing outlined in the fourth point which could possibly lead a fair-minded lay observer to a conclusion that I will not bring an impartial mind to the resolution of the question to be decided in this matter.

31    No logical connection is articulated between the contents of the fourth point and the feared deviation by me from the course of deciding the current proceedings on their merits.

32    In relation to the document dated 23 August 2023 and emailed overnight:

(1)    As mentioned earlier, there was no finding made in the reasons of 25 July 2023 to which Ms Yushkova has drawn my attention that, as Ms Yushkova puts it, Jeremy David Allen King is an alias.

(2)    The observations made regarding “disallowing of [Mr King’s] submissions into Court when he has standing and entitlement” appear to relate to Ms Yushkova’s dissatisfaction with the reasons published regarding Mr King. As I have said earlier, disappointment with an earlier decision does not of itself give rise to the conclusion that a judge may pre-determine the matter. The question is whether any fact has been raised by Ms Yushkova which could lead a fair-minded lay observer to consider that any actual or apprehended bias could lead to the real possibility that my mind would be closed or prejudiced against Ms Yushkova.

(3)    If the reference to “as for … all previous Judges, to absolutely ignore bankruptcy is under the threshold of $5,000” is a reference to whether the sequestration order was valid, that matter was never raised in the context of, or is the subject of, the earlier reasons. In passing, I note it appears that there was no challenge to the sequestration order, but I do not have information on that. I am assuming there has been no challenge or, if there was a challenge, it was unsuccessful.

(4)    Paragraph 2 of the document dated 23 August 2023 again referred to the issue of alias, and I have dealt with that earlier in these reasons.

33    For all of those reasons that I have outlined – and delivered ex tempore – I cannot see that there is any substance in the application for my recusal and I will dismiss that application.

Associate:    

Dated:    28 August 2023