Language – Invidious

The Cambridge Dictionary (online) says:

Indivious (adjective)

likely to cause unhappiness or be unpleasant, especially because it is unfair:

Such a difficult choice placed her in an invidious position.

The Macquarie Dictionary (4th ed) says:

Invidious (adjective)

1. Such as to bring odium, unpopularity, or envious dislike: an invidious honour.
2. Calculated to excite ill will or resentment or give offence: invidious remarks.
3. Offensively or unfairly discriminating: invidious comparisons [Latin invidious envious]

When considering apprehended bias, Kirby J said in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75 ALJR 277 (7 December 2000) at [161]:

Residual policy reasons: In addition to the foregoing, the following considerations of legal policy support maintaining a separate rule disqualifying a judge for any pecuniary interest in the subject matter of, or a party to, litigation.

1. The rule is pragmatic. It deals with an aspect of partiality that is well understood by litigants and the community[255]. It addresses a want of independence from the parties by adopting a simple rule which upholds the legitimacy of the judicial institution. Ascertaining, proving and correcting other causes of judicial disqualification are necessarily more contentious and less certain[256]. The fact that pecuniary interest can usually be more easily identified is a consideration that tends to raise the expectations of litigants, and of the community, that this element, at least, will be removed from the equation[257]. It is a real contribution to securing a decision-maker who is independent[258]. To the extent that there are multiple biasing influences, the removal or minimisation of this obvious one is a positive step in the desired direction[259].

2. The retention of the strict rule also affords a sanction that promotes manifest integrity in the judicial institution. The rule alerts judges to a specific obligation requiring prior consideration. Necessarily, when considering any disqualification which the strict rule on pecuniary interest obliges, judges will turn their attention to other disqualifications of interest, connection or association that may be relevant. The separate rule obviates investigation of the effect of the judge’s decision on the value of any interest held. It spares the judge concerned the invidious requirement of considering whether a reasonable and disinterested bystander would conclude that the pecuniary interest in question might give rise to an apprehension of bias. Much court time can be consumed in resolving such issues. A simple rule avoids that necessity. At least it does so in respect of a subject susceptible to simple expression and relatively objective determination.

In the context of an application to stay separate Court proceedings, Morrison JA (with whom Philippides JA and Brown J agreed) said in Smith v Kelsey & Ors; Dalley & Ors v Kelsey & Ors (2020) 4 Qd R 1; [2020] QCA 55 (27 March 2020):

[103] And such a delay puts the judicial officer hearing the IRC proceedings in an invidious position, with such a long gap between hearing the witnesses and making determinations on what evidence to accept, especially where that is based on findings of credit.[77] It is, in my view, no real answer to say that the IRC could finalise its proceedings but not publish the findings, or not publish them beyond the parties. Courts and tribunals are expected to conduct their hearings in open court, and the circumstances here do not warrant secrecy.

[104] That is an invidious position for Ms Kelsey, who has pursued her rights with expedition. It is all the more invidious because a previously given undertaking to meet her income under the contract has now been withdrawn.[78] These considerations were adverted to by Martin J.[79] For all that time Ms Kelsey would have to stand by, not having her name cleared and bearing the strain (financial and personal) of this litigation.

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