Sydney Refractive Surgery Centre Pty Ltd v Commissioner of Taxation [2007] FCA 1544

FEDERAL COURT OF AUSTRALIA

Sydney Refractive Surgery Centre Pty Ltd v Commissioner of Taxation [2007] FCA 1544

COURTS AND JUDGES –reasonable apprehension of bias – whether criticisms of a litigant in a previous decision are a basis for disqualification in separate proceedings Income Tax Assessment Act 1997 (Cth) Ebner v Official Trustee (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Re JRL; Ex parte CJL (1986) 161 CLR 342 Seven Network Ltd v News Ltd [2007] FCA 1062 Sydney Refractive Surgery Centre Pty Ltd v Commissioner of Taxation NSD 2471 OF 2006

SACKVILLE J

9 OCTOBER 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2471 OF 2006

BETWEEN: Sydney Refractive Surgery Centre Pty Ltd

Applicant

AND: COMMISSIONER OF TAXATION

Respondent

JUDGE: SACKVILLE J DATE OF ORDER: 9 OCTOBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application to disqualify Sackville J from hearing and determining the appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2471 OF 2006

BETWEEN: Sydney Refractive Surgery Centre Pty Ltd

Applicant

AND: COMMISSIONER OF TAXATION

Respondent

JUDGE: SACKVILLE J

DATE: 9 OCTOBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 18 September 2007, I made orders vacating the hearing in these proceedings, which had been set down for 20 September 2007. In the course of the interlocutory hearing on that day, Mr Smark, who appeared with Ms McBride for the applicant ('SRSC'), asked me to 'recuse' myself as the trial Judge. After hearing Mr Smark, I declined to accede to the request. I indicated that I would provide brief reasons for my decision in due course. These are the reasons.