AGF & LLS

[2005] FamCA 13

[2005] FamCA 13

JFFITZGE

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT SYDNEY VIA VIDEO LINK WITH BRISBANE

Appeal No. NA 47L of 2004

File No. BR 5353 of 2003

IN THE MATTER OF:

AGF

Appellant/Father

- and -

LLS

Respondent/Mother

REASONS FOR JUDGMENT

BEFORE:  Bryant CJ, Kay and Coleman JJ
DATE OF HEARING:        14^th day of September 2004
DATE OF JUDGMENT:     21^st day of January 2005

APPEARANCES:    The appellant father appeared on his own behalf.

Mr Nolan of Senior Counsel with Ms Martin of Counsel (instructed by Andersons Solicitors, PO Box 84, Acacia Ridge QLD 4110), appeared on behalf of the respondent mother.

Name of Appeal  AGF v LLS

Appeal Number  NA 47L of 2004

Date of Appeal hearing                   14^th day of September 2004

Date of Judgment  21^st day of January 2005

Coram  Bryant CJ, Kay and Coleman JJ

Catchwords:              Application for Leave to Appeal and/or appeal against trial Judge’s refusal to disqualify himself from hearing contempt charges which he caused to be brought against a party to proceedings before him.

Leave to Appeal not required – to the extent that leave may be required, Leave to Appeal granted - Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 and Rutherford v Rutherford (1991) FLC 92-255 followed.

Held that “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind” to the issue for determination - Johnson v Johnson [2000] HCA 48 (7 September 2000) followed.

Found that the circumstances of the case did not come within an exception to the rules of natural justice, therefore not open to the trial Judge to refuse to disqualify himself. Circumstances in which a Judge may hear and determine contempt proceedings initiated by the Judge discussed.       

Appeal Dismissed

No order as to costs
Reportable

1. This is an Application by AGF (“the husband”) filed 12 August 2004 for Leave to Appeal against the refusal of Barry J to disqualify himself from the hearing of two charges of Contempt of Court brought against the husband by his Honour on 30 July 2004.

2. Although formally resisting the appeal, and making submissions in support of such resistance, in oral submissions during the hearing of the appeal, learned Senior Counsel for LLS (“the wife”) indicated that the fate of the appeal was ultimately a matter for the Court in light of the view the Court took of the reasonable apprehension or otherwise of impartiality on the part of the trial Judge.

BACKGROUND

1. On 15 July 2004 Barry J made a series of orders in proceedings between the parties with respect to interim residence and other matters in relation to the child of the parties, LMF who was born on 18 December 1995. Other injunctive orders were also made.  Relevantly for present purposes his Honour ordered:-

   “(15)That all parties be at liberty to lodge written submissions for a re-consideration of the Orders made this day within 14 days, after they have had the opportunity to peruse the documents produced by the Commissioner of Police.”

2. Pursuant to that order, on 28 July 2004 the husband made a submission comprising some 55 paragraphs.  On the same day the husband filed an affidavit of some 33 pages, containing 236 paragraphs, which he had sworn on 25 July 2004. 

3. On 21 July 2004 the wife filed a Contempt Application alleging that the husband had breached an order of the Court of 15 July 2004 and that such “behaviour involved a flagrant challenge to the authority of the Court or a serious disregard” of the husband’s obligations under an order. 

4. The contempts alleged by the wife were that, at “1300hrs” on or about 15 July 2004 the husband “telephoned the school attended by the child in deliberate breach of an injunction made earlier that day 15 July 2004” and that the husband “attempted to contact the child by telephoning the school attended by her and asking to speak to her in deliberate breach of an injunction made earlier that day 15 July 2004”.

5. The relevant order made by Barry J on 15 July 2004 (Order 3) provided that the husband not “have any contact with the child either personally, by telephone or any form of written communication”. The Orders further provided (Order 7) that the husband not “telephone or attempt to telephone the child L at any number on which she may be contacted”.

6. The wife’s application came before Barry J on 30 July 2004. The husband asked his Honour to disqualify himself from hearing the application.  His Honour proceeded to consider that application, during the course of which he asked the husband whether he wished him to read the “written submissions lodged”. The husband asked his Honour to read the affidavit sworn by him on 25 July 2004.  Having read such material the trial Judge “overruled” the husband’s Disqualification Application and proceeded to hear the Contempt Application to which the husband had entered a plea of not guilty.  The husband did not seek an adjournment “to seek legal advice” or “for any other purpose”. 

7. Having heard evidence and submissions, his Honour found the first “charge” contained in the application filed 21 July 2004 to have been proved and remanded the husband in custody during the Court’s morning adjournment. Upon the Court’s resumption after such adjournment, his Honour delivered a brief judgment in which he intimated his intention to charge the husband with Contempt of Court in relation to statements made by him in his affidavit sworn 25 July 2004 and his submission filed on 28 July 2004. The husband was remanded for sentence in relation to the first contempt alleged in the wife’s Application of 21 July 2004.

10.  The foreshadowed Contempt Applications were adjourned until 3 August 2004 on which date his Honour proposed presenting the husband with a typed statement setting out the matters giving rise to the alleged contempts. 

11.  On 3 August 2004 the husband was presented with the two “charges” (transcript page 1). Those charges provided:-

“CHARGE 1 –CONTEMPT OF COURT

AGF you are charged that on the 30^th day of July 2004 at Brisbane you deliberately insulted the Court by presenting a document headed “Submission to Barry J” which document brought the Court and the Judge into disrepute [Particulars were then provided of passages that were alleged to have impugned the Court and the Judge personally] and in doing so you committed a contempt of Court.

CHARGE 2 – CONTEMPT OF COURT

AGF you are charged that on the 30th day of July 2004 at Brisbane you deliberately insulted the Court by presenting an affidavit sworn by you on the 25^th day of July 2004 which document brought the Court and the Judge into disrepute [Particulars were then provided of passages that were alleged to have impugned the Court and the Judge personally]

and in doing so you committed a contempt of Court.”

12.  The “charges” were then read out to the husband who entered pleas of “not guilty”.  The husband renewed his application that Barry J disqualify himself to which his Honour responded “I’ve got no intention of doing it”.  In refusing the Disqualification Application his Honour said :-

“The matter that I dealt with of contempt of Court in relation to telephone calls is a totally separate issue, it’s got nothing to do with contempt in the face of the Court.  I don’t feel the fact that I dealt with that I observed on sentence on that issue, I don’t feel my hearing that case has got anything to do with the fact that I have of my – of course own notion elected to charge you with contempt of Court”. 

13.  The husband’s application for adjournment of the matter to 17 September 2004 was granted.

THE PROPOSED GROUNDS OF APPEAL

14.  In his affidavit in support of his Application for Leave to Appeal sworn 8 August 2004, the husband raised a number of complaints which are not relevant to his application.  It would appear from the affidavit that the grounds upon which the husband seeks to persuade this Court that leave should be granted to appeal Barry J’s refusal to disqualify himself are substantially in reliance upon Bienstein v Beinstein [2003] HCA 7 (13 February 2003), it being asserted that the circumstances leading to disqualification of Guest J in that case were “almost identical” to those circumstances under which the husband sought that Barry J disqualify himself. The husband complains that Barry J gave “no reasons whatsoever” for refusing to disqualify himself; that “if the trial is conducted by Barry J it will not be a fair trial and I will definitely be found guilty and immediately be sentenced to a substantial gaol term”; and that “justice will not be done nor seem to be done if Barry J hears the case”. The husband also contends that his Honour hearing and determining the proceedings was “not in the public interest”.

15.  The husband filed an Outline of Argument in support of his application.  The matters therein contained do not have the potential to advance the husband’s argument, save to the extent that he asserts that “in all of the circumstances” relied upon by him, “it would be in the interests of all concerned and especially the children that a fresh and unprejudiced mind should be brought to determine the issue, at least, of contempt”

RELEVANT LEGAL PRINCIPLES

16. The husband has sought Leave to Appeal. Little attention has been devoted to the question of whether or not leave is in fact needed. The terms of s 94(1AA) of the Family Law Act 1975 (Cth) suggest that leave is not required. The section provides that:-

“An appeal lies to a Full Court of the Family Court from a decree or decision of a Judge exercising original or appellate jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter.”

The refusal of the trial Judge to disqualify himself would not appear to be a “prescribed decree” within the terms of Regulation 15A of the Family Law Regulations 1984 (Cth).

17.  If leave be granted, the relevant test for that purpose is not in doubt.  In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 the High Court said:-

“An interlocutory order for an injunction is a matter of practice and procedure. See McHarg v. Universal Stock Exchange Ltd. (27); Minister for the Army v. Parbury Henty and Co. Pty. Ltd. (28); White v. White (29)

Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd. (30); on the other hand, De Mestre v. A. D. Hunter Pty. Ltd. (31). For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F. B. Gilbert (dec.) (32):

". . . I am of opinion that, . . . there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal."

See also, Brambles Holdings Ltd. v. Trade Practices Commission (33); Dougherty v. Chandler (34). It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.” (per Gibbs CJ, Aickin, Wilson and Brennan JJ at 177)

18.  The Full Court of this Court said in Rutherford v Rutherford (1991) FLC 92-255:-

“As counsel for the husband rightly remarked there is not as yet any reported authority on the principles to be applied in granting leave under section 94AA(1). However, there are a number of authorities dealing with equivalent provisions in relation to the Federal Court of Australia and the Supreme Courts of the States. In our view, counsel rightly invited us to seek guidance in the remarks of the High Court in Adam P Brown Male Fashions Pty. Ltd. v. Philip Morris Inc. (1981) 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ as follows:-” (per Ellis, Nygh and Wilczek JJ at 78,715)

19.  If leave be required, and Barry J wrongly refused to disqualify himself, either of the requirements referred to above would be satisfied.  Leave to Appeal would thus be allowed as would the appeal itself.  On balance, we incline to the view that Leave to Appeal is not required.

20.  In our view, the husband’s reliance upon the decision of the Full Court of this Court in Bienstein v Beinstein (supra), and to the observations of Hayne J in the High Court in that case is misconceived. Bienstein v Beinstein (supra) turns on its own facts and circumstances.  Nothing said by the Full Court or by Hayne J in that case obliged Barry J to disqualify himself.

21.  So far as the issue of disqualification is concerned, there are essentially two issues potentially requiring consideration.  The first issue is whether a judge is disqualified by reason of the appearance of bias. The test of whether a judge is disqualified by reason of the appearance of bias is whether:-

“a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (Johnson v Johnson [2000] HCA 48 (7 September 2000) at paragraph 11 per Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ)

If the first question be answered in the affirmative it is necessary to determine whether the trial Judge was in the particular circumstances of the alleged Contempt in the face of the Court, obliged to disqualify himself from the hearing of the proceedings.

22. So far as the first question is concerned, there is in our view little scope for doubt that the test to which we have referred is satisfied. Our reasons for so concluding are essentially that Barry J had, prior to “charging” the husband with the two Contempts in the face of the Court, found him guilty of a charge of contempt brought pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Act”) and the nature of the words used by the husband in each of the documents which gave rise to the charges brought by his Honour, and the personal nature of many of them. In our view, “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (Johnson v Johnson (supra) at paragraph 11 per Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ) (emphasis added).

23.  Having concluded as we have in relation to the first issue, it is necessary to consider whether, contrary to normal principles of natural justice, Barry J was entitled to hear and determine the contempt charges which he caused to be brought against the husband.  As the learned authors of Borrie & Lowe; Law of Contempt (3^rd ed, Butterworths, 1996) suggest:-

“The fact that the judge tries and punishes the case himself is open to the obvious criticism that he is simultaneously judge, witness, prosecutor and plaintiff.  The criticism is most pertinant where the alleged contempt comprises conduct directed against the judge personally.” (at 522) 

24.  The learned authors further suggest however that:-

“The consensus of opinion among the judiciary and commentators alike is that despite the objections that the judge deals with the contempt himself and that the contemnor has little opportunity to defend himself, there is a residue of cases where not only is it justifiable to punish on the spot but that it is the only realistic way of dealing with certain offenders.” (at 522) 

25.  Whilst a variety of reasons have been put forward in defence of this exception to the general rule of natural justice, the most persuasive appears to be the need for a judge to remain in “full control of the hearing” and be able to “take steps to restore order as quickly and effectively as possible” (Canadian Law Reform Commission Working Paper No. 20: Contempt of Court (1977) quoted in Lowe N & Sufrin B, Borrie & Lowe; Law of Contempt, 3^rd ed, Butterworths, 1996 at 522). 

26.  As the Commission noted in its report, the “time factor” was:-

“… crucial: dragging out the contempt proceedings would mean a lengthy interruption to the main proceedings, thereby paralysing the court for a time, and indirectly impeding the speed and efficiency with which justice is administered.” (Canadian Law Reform Commission Working Paper No. 20: Contempt of Court (1977) quoted in Lowe N & Sufrin B, Borrie & Lowe; Law of Contempt, 3^rd ed, Butterworths, 1996 at 522)

27.  Miller (Contempt of Court, 2^nd ed) suggests, with a logic that is difficult to refute, that the exception can only be fully justified when dealing with persons whose continued presence serves to promote the due administration of justice and even then only to punish misconduct occurring during rather than at the end of the proceedings (Miller, Contempt of Court, 2^nd ed at 136).  

28.  In Keeley v Mr. Justice Brooking (1979) 143 CLR 162 Stephen J said that the “summary procedure” whereby a judge who causes a person to be charged with Contempt of Court hears and determines such charge should:-

“… not only should be employed most sparingly but should rarely be resorted to except in those exceptional cases where the conduct is such that “it cannot wait to be punished” because it is “urgent and imperative to act immediately” to preserve the integrity of “a trial in progress or about to start”.” (at 174)

29.  It is apparent that the exception to the general principles of natural justice which enables a judge to charge and summarily determine contempt proceedings is justified on the basis of the need to deal with conduct which threatens the integrity of proceedings committed and dealt with during the course of such proceedings.  The conduct of the husband in this case created no threat to the proceedings which Barry J was hearing and determining. 

30.  Barry J brought the charges against the husband after the proceedings before him in which the material giving rise to the charges was filed.  The proceedings were adjourned to enable the charges to be formulated and presented to the husband.  In the circumstances, we conclude that it was not reasonably open to Barry J to refuse to disqualify himself from hearing the further proceedings.  The exception to the circumstances did not give rise to the exception to the rules of natural justice.

31.  Given the conclusion we have reached, it is unnecessary to refer to any other complaints raised by the husband.

CONCLUSION

32.  To the extent that Leave to Appeal is required, that leave should in our view be granted.  The husband having satisfied the requirements for a grant of leave, and nothing asserted on behalf of the wife persuading us otherwise, the appeal should also be allowed. 

33.  The orders of the Court are accordingly: -

1.   That Leave to Appeal be granted.

2.   That the appeal against Barry J’s refusal to disqualify himself from hearing two charges of contempt laid against the husband on 3 August 2004 be allowed.

3.   That Barry J be disqualified from the further hearing of such charges.

4.   That costs be reserved.

5.   That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal within 21 days of the date hereof.

6.   That the other party have a further 14 days in which to make written submissions in answer thereto.

7.   That the first mentioned party have a further seven (7) days in which to make any written submissions in reply thereto.

I certify that the preceding
33 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.
A.Coleman
Associate
21/01/05