Batey-Elton & Elton
[2010] FamCAFC 79
•23 April 2010
FAMILY COURT OF AUSTRALIA
| BATEY-ELTON & ELTON | [2010] FamCAFC 79 |
| FAMILY LAW - APPEAL – DISQUALIFICATION – Whether the wife was denied natural justice or procedural fairness – Where the wife’s disqualification application required prompt determination – Procedural fairness afforded to the wife – No merit to grounds – Whether the trial Judge was actually biased or created a reasonable apprehension of bias – Where no particulars of actual bias were advanced – Actual or apprehended bias by the trial Judge not established. FAMILY LAW - APPEAL – APPLICATION FOR LEAVE TO APPEAL – Injunction restraining non-practitioner from accompanying wife to inspect documents – Whether the trial Judge erred by failing to provide adequate reasons – Where the basis on which the order was made was not able to be discerned – Appealable error established – Injunction restraining non-practitioner from being present in court during proceedings between the husband and the wife – The Court has such powers as are incidental and necessary to the exercise of its jurisdiction – Where order made by the trial Judge pursuant to such power – Where non-practitioner’s conduct disruptive, disrespectful and inappropriate – Where the trial Judge’s reasons for excluding from the courtroom soundly based – Whether the wife was denied procedural fairness or natural justice – No merit to complaints – Application for leave to appeal granted – Appeal in respect of Order 12 of the orders of 15 February 2010 allowed – Balance of appeal dismissed. FAMILY LAW - APPEAL – APPLICATION TO ADJOURN APPEAL – Where there was a considerable period of time from the filing of the appeals for the wife to prepare submissions – Where transcript was provided and appeal books prepared by the Court – Where any prejudice to the wife overcome by order permitting the filing of further written submissions in relation to her analysis of the transcript – Application dismissed. FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – Application for non-practitioner to appear on behalf of the appellant wife – Where issue has been the subject of determination by previous, separately constituted, Full Courts – The role of, and limitations placed on, persons acting as a McKenzie Friend as explained by Lindenmayer J in Watson & Watson (2002) FLC 93-094 considered – Applicable principles set out by Stein JA in Damjanovic v Maley (2002) 55 NSWLR 149 followed – Duties imposed on members of the legal profession in their capacity of officers of the Court of particular relevance – Non-practitioner permitted to act as McKenzie Friend but not granted right of audience. FAMILY LAW - APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the wife sought to adduce tape recording of joint interview with the family report writer – Where the circumstances in which the recording was made or its authenticity not known – Where the extract of the family report contained in the trial Judge’s reasons based on the report writer’s observations of the manner and conduct of the wife and Mr B – Where there would be no utility to its tender – Where wife sought to adduce affidavits from persons present during proceedings before trial Judge – Where the Court had the benefit of the transcript of the proceedings – Where untested witness statements would be of little utility – Where evidence given in statements would be subjective and controversial – Application dismissed. |
| Evidence Act 1995 (Cth) – s 144 Family Law Act 1975 (Cth) Judiciary Act 1903 (Cth) – s 55A, s 55B |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 Batey-Elton & Elton (No 2) [2008] FamCAFC 202 Butterworths Cross on Evidence Australian Edition, Vol 1 (at 124 [3160]) |
| APPELLANT: | Ms Batey-Elton |
| RESPONDENT: | Mr Elton |
| FILE NUMBER: | TVF | 2250 | of | 2004 |
| FIRST APPEAL NUMBER: | NA | 19 | of | 2010 |
| SECOND APPEAL NUMBER: | NA | 41 | of | 2010 |
DATE DELIVERED: | 23 April 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane (and Sydney via video link) |
| JUDGMENT OF: | May, Boland & Strickland JJ |
| HEARING DATE: | 12 April 2010, written submissions filed 19 April 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 February 2010 and 15 February 2010 |
| LOWER COURT MNC: | [2010] FamCA 106, [2010] FamCA 107, [2010] FamCA 266 and [2010] FamCA 271 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Ms Batey-Elton appeared in person |
| COUNSEL FOR THE RESPONDENT: | Mr Page SC |
| SOLICITOR FOR THE RESPONDENT: | Rod Madsen Solicitor |
Orders
Appeal No NA 19 of 2010 is dismissed.
The application for leave to appeal in Appeal No NA 41 of 2010 is allowed.
Appeal No NA 41 of 2010 is allowed in part.
Order 12 of the orders made by the Honourable Justice Cronin on 15 February 2010 be set aside.
The application in an appeal filed 31 March 2010 is dismissed.
The application in an appeal filed 7 April 2010 is dismissed.
The parties are at liberty to file written submissions with regard to the costs of the appeals in accordance with the following timetable:
(a)on behalf of the respondent within 21 days hereof;
(b)on behalf of the appellant in response thereto within seven days thereafter;
(c)on behalf of the respondent in reply thereto within seven days thereafter; and
(d)that each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
IT IS NOTED that publication of this judgment under the pseudonym Batey-Elton & Elton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 19 of 2010; NA 41 of 2010
File Number: TVF 2250 of 2004
| Ms Batey-Elton |
Appellant
And
| Mr Elton |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons relate to an appeal, an application for leave to appeal, and two applications in those appeals all filed by Ms Batey-Elton against and in relation to orders made by Cronin J on 11 February 2010 and 15 February 2010.
Although the parties have been divorced for a number of years, for convenience only, we will refer to them as “the wife” and “the husband”. The husband resisted the wife’s appeals and the applications in those appeals.
In 2004 the wife applied, under s 79A of the Family Law Act 1975 (Cth) (“the Act”), for orders setting aside consent property orders made 10 September 2004 between herself and the husband.
Also listed for hearing before the trial Judge was an application filed by the husband in which he sought the wife’s s 79A application be summarily dismissed.
The wife was not legally represented before the trial Judge or before us. The husband was legally represented and Mr Page SC appeared on his behalf both before the trial Judge and us.
The competing applications were listed for a three day hearing commencing on 11 February 2010 before Cronin J in circumstances we will shortly more fully describe.
On 10 February 2010 the wife filed two applications. In one of those applications she sought, in broad terms, an order that an interstate judge other than Cronin J hear her application under s 79A. Cronin J determined that the order sought was an application that he should disqualify himself, and indeed the transcript of 11 February 2010 (page 14) reveals that the wife confirmed to the trial Judge that included in her application filed on 10 February 2010 was an application that he disqualify himself. Thus, on 11 February 2010 his Honour decided that aspect of the wife’s application. His Honour determined the wife’s application that he be disqualified, and stood over the balance of her application before him to 15 February 2010. The wife has appealed against that decision. We will refer to this appeal (Appeal No NA 19 of 2010) as “the disqualification appeal”.
On 15 February 2010 the wife sought, amongst other matters, the adjournment of the substantive hearing. The wife had been granted leave by the trial Judge to have the assistance of her partner, Mr B, in a manner understood to be as a McKenzie Friend. During the course of the hearing on 15 February 2010 two separate orders were made by the trial Judge concerning Mr B. Those orders provide as follows:
1.That until further order [MR B] is restrained from being in the court room of this Court during any proceedings between [Mr Elton] and [Ms Batey-Elton].
and:
…
12.That by 4.00pm on 22 February 2010, but not thereafter, the wife have leave to inspect the documents produced under subpoena by the National Bank of Australia … together with any other subpoenaed documents provided, within the precincts of the Court and for that purpose, [MR B] be and is hereby precluded from attending.
…
The wife filed an application for leave to appeal those orders and other orders made on 15 February 2010. We will refer to this application (Appeal No NA 41 of 2010) as “the injunction appeal”.
As we have already indicated, the wife also filed two applications in the appeals. In the first application filed 31 March 2010 the wife sought a number of orders, including an order she be permitted to adduce further evidence. The wife also sought that Mr B be permitted to appear on her behalf at the hearing of the appeals, or in the alternate, that Mr B be permitted to make submissions in respect of matters which affected him personally.
The wife sought, without objection, leave to amend the application filed 31 March 2010 insofar as it related to the adducing of further evidence. Rather than applying to admit an audio tape of the proceedings, the wife sought to file affidavits or statements by witnesses who were present in court on 15 February 2010. She also sought that C Pty Ltd be noted as a party to the proceedings.
In her application filed 7 April 2010 the wife sought leave to adduce evidence of “[a]n audio recording to be played at the hearing of the appeal”. Additionally she sought an order in similar terms to her amended application of 31 March 2010 that she be permitted to adduce evidence from “members of the public” in court on 15 February 2010 as well as any other material she considered relevant provided that material was filed 10 days prior to the adjourned hearing of the appeals. The wife finally sought an order that the appeals be adjourned.
During the course of the hearing we:
·dismissed the wife’s application for an adjournment of the appeal (however we granted leave to the wife to file further submissions limited to the analysis of the transcripts in the appeal book);
·determined that Mr B could make submissions to us in respect of the orders personally affecting him, but dismissed the wife’s application that he appear on her behalf;
·allowed Mr B to act as a McKenzie Friend for the wife in respect of both appeals and the two applications; and
·indicated we would give our reasons in respect of the above matters at the same time as we gave our reasons in respect of the appeals.
We propose to deal first with the two applications in the appeals. We will then consider the disqualification appeal, and finally consider the injunction appeal with emphasis on the orders which affect Mr B.
The application of 31 march 2010
The wife sought and no objection was taken to her amending paragraph 1 of her application to seek, in lieu of us admitting an audio recording, that we admit further evidence being, witness statements of persons in court during the hearings. The wife asserted these statements would demonstrate a lack of procedural fairness and/or bias by the trial Judge. We will discuss this aspect of the wife’s application when considering the injunction appeal.
The balance of the orders sought by the wife in her application are as follows:
…
2.The order until further order made by Justice Cronin in these proceedings requiring [Mr B] to not be present in court in proceedings involving these parties is quashed.
3.[Mr B] has Leave to appear for the Appellant in the hearing of this Application in an Appeal and in the hearing of the three appeals now before the Full Court.
or, in the alternative,
[Mr B] has Leave to make submissions in this Application in an Appeal insofar as matters in issue affect himself personally and then to seek Leave to act as advocate for the Appellant in the hearing of these three appeals and to make submissions in that cause before any decision is made regarding the Appellant having his services as an advocate.
4.Justice Cronin is Disqualified from further hearing any matter involving the Appellant and the trial date in these proceedings set by him is vacated.
5.In accordance with Orders 4 and 5 made by Justice O’Reilly on 13 December 2006, [C Pty Ltd] shall be noted to be a party to these proceedings and shall by its authorised officer comply with those and other orders and forthwith (but in any event within 21 days) render full Discovery of all financial matters relevant to these proceedings.
6.The Respondent shall file in the Court forthwith (but in any event within 21 days), evidence complying with all of the orders made on 13 December 2006 by Justice O’Reilly as Annexed hereto, inter alia quantifying and identifying the location of all assets of himself and [C Pty Ltd] and of the [Elton Family Trust], such Evidence inter alia to account for the $ 1,008,000 Respondent has admitted on affidavit he was ordered to hold upon Trust for disbursement by this court in these proceedings and also for the livestock, plant and equipment removed from the former marital property known as [“H”] …
7.A date for a Directions hearing regarding the future conduct of these proceedings shall be set down as soon as practicable.
We note that no significant submissions were addressed to us in respect of the orders sought in paragraphs 5 and 6 of the application. This part of the application can be disposed of shortly. It was conceded by the husband that C Pty Ltd is a party to the proceedings and that company is represented by the husband’s solicitors. Insofar as Order 6 is concerned we are satisfied that is not an order we could make even if we found appealable error and were to re-determine the matter. It is an order to be made at first instance, or upon the filing of an enforcement application in respect of an existing order, and as we will shortly explain, in any event, it touches on issues thoroughly canvassed with the wife by the trial Judge on 15 February 2010.
We explained to the wife at the hearing that Orders 2 and 4 as sought are matters for us to determine in our consideration of the appeals. Indeed, Order 4 is the subject of one of the appeals.
Mr B’s right of audience or to act as a McKenzie Friend
We propose only briefly to canvass the issue of Mr B’s right of audience before us. That issue has been the subject of determination by at least two separately constituted Full Courts of this Court, and on each occasion the application for Mr B to appear as advocate for the wife has been refused.
We commence our discussion of the wife’s application that Mr B be permitted to appear on her behalf by setting out s 55A and s 55B of the Judiciary Act 1903 (Cth) which provide as follows:
SECT 55ARight of barristers and solicitors admitted in federal courts to practise in those courts
A person who has been admitted to practise as a barrister or solicitor, or as both, under rules made in pursuance of paragraph (ga) of section 86 of this Act is, subject to those rules, entitled to practise in any federal court as a barrister or solicitor, or as both, as the case may be.
SECT 55B Right to practise as barrister or solicitor in federal courts and courts exercising federal jurisdiction
(1) Subject to this section, a person who:
(a) is for the time being entitled to practise as a barrister or solicitor, or as both, in the Supreme Court of a State; or
(b) is for the time being entitled, under a law (including this Act) in force in a Territory, to practise as a barrister or solicitor, or as both, in the Supreme Court of that Territory;
has the like entitlement to practise in any federal court.
(2) A person is not entitled to practise in a federal court as a solicitor by reason of paragraph (b) of the last preceding subsection unless:
(a) he or she has been admitted to practise as a solicitor or legal practitioner by the Supreme Court of the Territory; or
(b) he or she practises as a solicitor in the Territory and his or her sole or principal place of business as a solicitor is in the Territory.
(3) A person is not entitled to practise as a barrister or solicitor in a federal court by reason of subsection (1) unless his or her name appears in the Register of Practitioners kept in accordance with the next succeeding section as a person entitled to practise in that capacity.
(4) A person who is, under subsection (1), entitled to practise as a barrister or solicitor, or both, in any federal court has a right of audience:
(a) in any court of a State in relation to the exercise by the court of federal jurisdiction; and
(b) in any court of an internal Territory in relation to the exercise by the court of federal‑type jurisdiction.
(5) The Chief Justice of the Supreme Court of a State or an internal Territory may direct the Registrar or other proper officer of that Supreme Court to keep a Register of Practitioners for the purposes of subsection (4) and, where such a Register is kept in a State or Territory, a person is not entitled, in a court of that State or Territory, to the right of audience referred to in subsection (4) unless he or she is registered in that Register.
(6) Where a Register is kept in a State or Territory in accordance with subsection (5), a person who satisfies the Registrar or other officer keeping the Register that he or she is a person referred to in subsection (4) is entitled to be registered in that Register.
(7) Where it is proved to the satisfaction of the Supreme Court of a State or Territory constituted by 2 or more Judges that a person who is registered in the Register kept in that State or Territory in accordance with subsection (5) has been guilty of conduct that justifies it in so doing, the Supreme Court may order that person's registration be cancelled or be suspended for a specified period, but the Supreme Court may, at any time, order that the registration of the person be restored or that the suspension be terminated.
(8) The Registrar or other proper officer of the Supreme Court shall make such alterations and notations in a Register kept by him or her as are required by reason of orders of the Supreme Court under subsection (7).
(9) Notwithstanding subsection (6), where the registration of a person has been cancelled in accordance with subsection (7) and has not been restored, or is for the time being suspended, that person is not entitled again to be registered in the Register except pursuant to an order under subsection (7).
(10) In this section:
federal-type jurisdiction, in relation to a court of an internal Territory, means jurisdiction conferred on the court by or under a law of the Commonwealth, but does not include jurisdiction conferred on the court under an Act providing for the acceptance, administration or government of that Territory.
The role of, and limitations placed on, a person acting as a McKenzie Friend are clearly explained by Lindenmayer J in Watson & Watson (2002) FLC 93-094. His Honour explored the history of the role emanating from the UK decision of McKenzie v McKenzie [1970] 3 All ER 1034 at paragraph 18 of his reasons as follows:
18. The first point which I think it important to make is that the application here is for the appointment of a “next friend”, not for the leave of the Court to employ the services of an assistant of the kind which has become known, throughout the Common Law world, as a “McKenzie friend”, following the decision of the English Court of Appeal in McKenziev McKenzie [1970] 3 All ER 1034. That decision was to the effect that a litigant who appears before a Court in person is ordinarily entitled, if he or she so wishes, to have the assistance, in the Court, of a friend or assistant who may sit beside the litigant at the bar table for the purpose of taking notes, handling or cataloguing documents or exhibits, making quiet suggestions to the litigant as to how best to conduct the case, and generally being of assistance to the litigant in presenting his or her case to the Court, provided that that person does not disrupt the proper conduct of the proceedings. However, an important limitation upon the role and functions of a “McKenzie friend” is that he or she may not (except, perhaps, in the most exceptional cases, and with the express leave of the Court) act as an advocate for the litigant in the proceedings. That limitation has been recognized at least since a statement was made to that effect by Lord Tenterden CJ in ColliervHicks (1831) 2 B & Ad 663 at 669; 109 ER 1290 at 1292, and has recently been reaffirmed by the Full Court of this Court (Kay J, with whom Holden and Mullane JJ agreed) in KTvKJ and TH (2000) FLC ¶93-032 at 87,509.
The cases dealing with the issue of a non-practitioner appearing on behalf of a party in other superior courts are comprehensively reviewed by Stein JA (with whom Mason P and Sheller JA agreed) in Damjanovic v Maley (2002) 55 NSWLR 149; (2002) 195 ALR 256 and the applicable principles are summarised at paragraphs 69 to 86 of his Honour’s reasons. We adopt the principles espoused therein which we now set out:
Principles from the cases
69.A number of themes or principles run through the cases which are relevant to the exercise of the discretion to grant or refuse leave to an unqualified person to appear on behalf of an unrepresented litigant. They may be briefly summarised as follows:
(a) The complexity of the case
70.Whether the case is one of complexity or minor or straightforward has often been seen as a discretionary factor: see for example, Scotts Head, per Mahoney A-P (at 4); Re G J Mannix (at 311, 314 and 316); Bay Marine, per Samuels JA (at 110–11); Hubbard (at 343); Abse (at 549); and Miles CJ (at 3) in Commonwealth Bank v Individual Homes.
71.In the instant case Judge Dent referred to the case as a complex one having regard to the pleadings. This was a relevant factor well open to be concluded by the judge.
(b) Genuine difficulties of the unrepresented party
72.These include matters such as unexpected language difficulties and emergencies. An example of the latter was the absence of legal aid in a criminal appeal (Schagen (at 411-412)). Also, in that case, the appellant was deaf and virtually incomprehensible to the court reporters. The court permitted two law students to address the court: see also Re G J Mannix (at 314, 316, 317); Scotts Head (at 4); Abse (at 549); Galladin (at 147–8); and Stergiou (at 247).
73.The case before the court does not fall into an emergency situation nor one where the appellant experienced unexpected language difficulties in conducting his own case. Mr Damjanovic was probably always going to need an interpreter. If he gave evidence, as he would need to in order to establish his case, Ms Vukic could not interpret for him. Doing so would obviously conflict with her position as his advocate: see, for example, Pacific Air Freighters (Qld) Pty Ltd v Toller(2000) 171 ALR 519 at 521. That the appellant had previously been dissatisfied with interpreting services is beside the point. To be able to present his own case, the appellant would need an accredited interpreter of the Croatian language. That the appellant has poor command of the English language is no reason to grant Ms Vukic leave to appear as his advocate.
(c) The unavailability of disciplinary measures and a duty to the court by lay advocates
74.Almost every case mentioned these matters as protection for a client when a qualified lawyer represented a party but were protections which were not available where an unqualified lay advocate appears: see Re G J Mannix (at 311, 316); Scotts Head (at 3); Hubbard (at 343); Abse (at 546, 555); Bay Marine (at 110–11); R v Smith (at 614); Tritonia (at 587); and Paragon (at 2371) referring to Woolf MR in D v S. Abse also emphasised the duty of a legal practitioner of absolute probity.
75.In appropriate cases a legal practitioner may be ordered to pay costs. The position is far from clear in relation to a non-party lay advocate. There may be extreme circumstances where the conduct of a lay advocate could attract an adverse costs order.
76.In my opinion, the overall duty of a barrister or solicitor to the court is an important consideration. It is a duty of candour and a practitioner must not knowingly mislead the court. The court is entitled to place reliance on that duty and expect it to be met. The disciplinary codes of the legal profession back up the overriding duty of a practitioner to the court. (See D A Ipp, “Lawyers’ Duties to the Court” (1998) 114 Law Quarterly Review 63).
77.Training, qualifications and experience are also important. This is not to say that there are not incompetent lawyers, including some who seek to practise advocacy. For the most part, the market and the disciplinary codes account for them. But with unqualified and uninsured lay advocates, the court loses the benefit of the overriding duty and clients are at a distinct disadvantage. Apart from endeavouring to ensure that a lay person granted leave to appear obeys the rules, there is little a court can do except, in an appropriate case, withdraw the leave to appear.
78.All of the above is not to say that Ms Vukic has not obeyed the rules of court when she has been granted leave to appear. In the court’s experience she has been unfailingly courteous and polite. However, the absence of a disciplinary code and duty to the court underlines the inappropriateness of permitting unqualified persons to appear apart from an exceptional case.
(d) Protection of the client and the opponent
79.Lay advocates are unqualified, unaccredited and uninsured. This places a client at considerable risk. The point was made in Scotts Head that an unqualified advocate may cause loss to a party (at 3). A lay advocate does not owe the same duty to his client as does a lawyer. See also Abse (at 546) highlighting the duty owed by a lawyer to assist the court in ensuring the end of the proper administration of justice. On the same issue see also Paragon and D v S.
80.One should also not lose sight of a lawyer’s duty to his/her opponent, Scotts Head (at 3). None of these protections for the system of justice exist with an unqualified lay advocate. In this case, Mr Damjanovic has none of the protections although he can afford a lawyer. As I have said, it is difficult to accept that he cannot find a competent and trustworthy Croatian or non-Croatian lawyer.
(e) Lay advocates in inferior courts and tribunals
81.There are indications in some of the cases that Local Courts, given their jurisdiction and large numbers of unrepresented litigants, may be more likely to grant leave to unqualified persons. This is, one assumes, in straightforward uncomplicated matters where the party is under some disability in presenting his/her own case. This may also be the case with some specialist jurisdictions and tribunals.
82.The authorities however suggest that higher courts should be very chary at giving leave. See Re G J Mannix (at 314); Hubbard (at 343), Bay Marine (at 111); Scotts Head (at 3–4); and D v S (see Paragon (at 2369)).
(f) The interests of justice
83.What runs through all of the authorities as the guiding principle in the exercise of the discretion is the public interest in the attainment of the ends of justice. The public has an interest in the effective, efficient and expeditious disposal of litigation in the courts. As a general rule this can best be achieved by parties employing qualified lawyers.
84.The reason for this was explained by Gleeson CJ in a speech given to the Supreme Court of Japan in January 2000 (Current Issues for the Australian Judiciary). The Chief Justice said that: “The adversary system assumes, in the interests of both justice and efficiency, that cases will be presented to courts by skilled professionals. To the extent to which that assumption breaks down, so does the system”.
85.Representation by legal practitioners will not always be possible because of the high cost of legal services and restrictions on legal aid. There is therefore room for the discretion to be exercised in an appropriate case, as indeed the authorities make plain and in circumstances where the achievement of justice cannot be otherwise secured.
86.Nonetheless, the foundation for the general principle and limited room for the discretion to be exercised is, as Mahoney AP said in Scotts Head, the proper administration of justice and the protection of the parties. It is not a rule devised to protect a lawyer's privilege or monopoly. Access to justice is a difficult issue in an ever more complex society with constraints on public resources. It will therefore be understandable and appropriate that judges will from time to time be prepared to grant leave to an unqualified person. Advocacy before courts is however a difficult skill to acquire without formal qualifications, training and practice. Ultimately perhaps governments may take up some of the recommendations of the Access to Justice Report referred to earlier.
We think in this case the matters espoused in paragraphs 74-77 are of particular importance, as are those set out in the following two paragraphs 79 and 80. We would also emphasise the importance of the matters referred to in paragraphs 83-86. (See also Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481 per Bennett J where her Honour discussed both the right of audience before a Federal Court and the role of a McKenzie Friend).
While we note it was proposed that Mr B would offer an undertaking to this Court to behave in a professional manner, we perceive inherent difficulties if he breached this undertaking to the Court. Of greater relevance however are the principles espoused in the cases to which we have referred, and in particular the emphasis on the duties imposed on members of the legal profession in their capacity as officers of the Court, the fact such persons are required to conform with professional obligations governing their admission and right to practice, the need for such persons to be insured, and that they may be subject of disciplinary procedures under the relevant legislation.
Nothing was advanced to us by the wife which demonstrated any different fact or circumstance from matters advanced to previous Full Courts by the wife that we should take into consideration. It was for this reason, and adopting the reasons of the earlier Full Courts, particularly the reasons of Warnick J in the decision reported as Batey-Elton & Elton (No 2) [2008] FamCAFC 202, that we permitted Mr B to act as a McKenzie Friend but denied him a right of audience before us. We would add that in attempting to understand the reason the wife asked that Mr B be permitted to appear as an advocate we canvassed with her the reason she thought this was necessary. The wife did not establish any reasons different from those of most litigants in person. In particular we raised with her whether it was necessary for a Case Guardian to be appointed on her behalf. She strongly resisted such a suggestion.
The application of 7 April 2010
In that application the wife sought the following orders:
1.That Justice Murphy excuse himself from presiding over any hearing of appellant’s appeals or associated applications.
2.Appellant has Leave to adduce further evidence in the form of :
a)An audio recording to be played at the hearing of the appeal
b)Affidavits to be sworn from members of the public present in court on 15 February when Justice Cronin displayed clearly injudicious behaviour which may have led an ordinary reasonable person consider [sic] that he may not bring a balanced mind to the task before him, or that he was biased.
c)Any further material Appellant considers is relevant provided same is filed not less than ten clear days before the date of any adjourned hearing of these appeals.
3.Adjourn the hearing of these appeals to a date to be fixed.
4.An injunction issue to restrain Justice Cronin from further hearing any matter involving the appellant until further order.
As can be seen, the wife sought leave to adduce by way of further evidence an audio tape recording which she said was made by herself and Mr B during the course of their joint interviews with Ms O, the family report writer who in 2006 prepared a report at the request of the independent children’s lawyer for the purpose of the parenting proceedings. It was asserted by the mother that the tape recording would demonstrate that views about Mr B expressed by Ms O, and which the trial Judge referred to in his reasons, were inaccurate and defamatory.
This aspect of the mother’s application is closely intertwined with aspects of the injunction appeal and we will deal with this issue when considering grounds relating to that appeal.
It was conceded before us that the order sought in paragraph 1 of this application was no longer pursued, nor were the written submissions insofar as they sought to challenge Murphy J being a member of the Full Court hearing the appeals. We have disregarded these matters. It is unnecessary, for identical reasons to those we have given above, that we deal at this point in our reasons with the relief sought in paragraph 2(a), (b) or (c) and paragraph 4.
In relation to the relief sought in paragraph 3, we determined the appeals should not be adjourned for the following reasons:
·the appeals were filed respectively on 12 February and 15 March 2010 so that there was a considerable period of time for the wife to prepare her submissions;
·we granted an indulgence to the wife in permitting her to file in court written submissions when she had not complied with the procedural orders made 25 March 2010 that the wife file and serve her submissions by 4.00 pm on 8 April 2010;
·the Court provided, at its expense, transcript to the wife and prepared the appeal books for her;
·the Court had allocated hearing dates commencing on 27 April 2010. In the event the appeals were dismissed there would be prejudice to the husband if those dates had to be vacated by reason of the adjournment of the appeals;
·the Court had regard to its resources, the delay since the proceedings were instituted in 2004, and the availability of another Full Court to hear the appeals in a reasonable period of time; and
·the only disqualifying fact referred to by the wife to the matter proceeding before us was her submission she had not had time to properly analyse the transcript – that prejudice was overcome by our order permitting the wife to file further submissions on that issue.
Background
Some background is set out in the judgment of the Full Court published 5 March 2008 (Elton & Batey-Elton (Interim costs appeal) [2008] FamCAFC 175 (paragraphs 4-19)) and we refer to that background for the purposes of these appeals.
On 24 August 2009 Cronin J published reasons and made orders in respect of the husband’s parenting application. On the same day his Honour published his separate reasons for his refusal to accede to the wife’s application to adjourn the final hearing of those proceedings. At paragraph 15 of his substantive judgment in the parenting proceedings his Honour explained what happened at the conclusion of the adjournment application:
Upon the refusal of the application, the wife then departed the court saying that there was no point in her further involvement and that the Court was acting as a “kangaroo court”.
The parenting application was determined by his Honour as an undefended matter.
On 21 October 2009 an order was made that the wife’s application under s 79A, the husband’s summary dismissal application, and his application in respect of reserved costs be listed for trial in the week commencing 8 February 2010 but not before 11 February 2010. Directions were made for the filing of material.
A compliance check was held on 2 February 2010 and further procedural orders were made.
At some time in the week commencing 8 February 2010 the respondent’s solicitors became aware a trial listed before Cronin J on 8 February 2010 would not be completed by 11 February 2010 or by the following week. The husband’s senior counsel asserted in his submissions:
26.… Notwithstanding that, enquiries made of the appropriate officer of the Registry indicated that the matter would proceed on 11 February 2010.
27.It is accepted that on 11 February 2010 the parties became aware that the matter proceeding during that week had terminated.
28.It is the respondent’s submission that there was no basis in an application for an adjournment based upon a notification provided to the parties that the matter listed for 11 February was for mention only. This was the first intimation to the parties that the matter would not proceed to trial on that day as matters then stood but the Court was entitled to assume that each of the parties would be ready for hearing on that day. Nothing had been done prior to that day which would indicate to them any other course. Indeed at the compliance conference before Kane R, the appellant raised only the issue of disclosure as a factor meriting an adjournment. (respondent’s outline of argument filed 8 April 2010, p 8 – 9)
Before us the husband’s senior counsel conceded there was some confusion by reason of the advice received from the Registry as to what was to happen on 11 February 2010. The wife referred us to her correspondence with the case manager for her case. We accept the wife’s confusion about the nature of the hearing on 11 February 2010 was understandable in these circumstances, but we are also satisfied any confusion became irrelevant as the only issue dealt with on 11 February 2010 was the wife’s application that the trial Judge disqualify himself – an application which required immediate attention to enable the future conduct of the matter to be determined.
The disqualification appeal
In her Notice of Appeal filed 12 February 2010 the wife relied on 10 grounds of appeal. Those grounds essentially fall into three challenges. First it is asserted that there was a breach of the rules of natural justice or procedural fairness. Secondly it is asserted that the trial Judge was actually biased, or his conduct led to a reasonable apprehension of bias. Finally, it is asserted that his Honour’s discretion in refusing to disqualify himself miscarried.
We perceive the natural justice challenge or procedural fairness grounds are directed to the fact that the trial Judge heard the disqualification application on 11 February 2010 in circumstances where it was asserted by the wife she was unclear as to what was to be heard on that date.
Before commencing our discussion of this appeal it is important that we note the following matters which appear in the transcript of 11 February 2010:
·the wife confirmed she sought an order that the trial Judge disqualify himself (transcript p 14);
·the wife indicated to the trial Judge she would be ready to proceed with her disqualification application “[i]n a couple of days” (transcript p 17);
·his Honour stood down the wife’s application to see if another interstate judge could hear the substantive proceedings in a reasonable time, and when he ascertained no judge was available, indicated in those circumstances the disqualification application required urgent determination because of the length of time the applications had been outstanding (transcript p 20);
·notwithstanding the wife sought his Honour should be disqualified in the proceedings she sought he should deal with other aspects of her application (transcript pp 22, 35);
·in an affidavit filed 2 February 2010 the wife deposed (paragraph 9) as follows:
I request the trial to be handled by an interstate judge, not being Justice Cronin since I have real and provable apprehension of bias with all remaining Family Court judges in Queensland and with the gross misconduct of Justice Cronin in my matter previously.
·his Honour identified the only matters which could be relevant to bias or apprehended basis would be his conduct of the parenting proceedings and reasons for judgment and orders in respect of those proceedings delivered on 24 August 2009 (as well as his Honour’s refusal of the wife’s application for an adjournment and his reasons and orders in respect of that application);
·the trial Judge provided the wife with a copy of his reasons for judgment dated 24 August 2009 and stood the matter down for two hours to afford the wife an opportunity to review his judgments;
·the husband’s senior counsel submitted that the wife had been on notice since August 2009 of his Honour’s decision in the parenting proceedings, that she had not appealed the parenting orders and had ample time to prepare any disqualification application;
·the trial Judge indicated he would grant an adjournment of the disqualification application if the wife identified evidence she wished to adduce to support her application (transcript pp 36-37). His Honour allowed the wife time to make a telephone call and again stood the matter down for that purpose; and
·on the matter resuming the wife said to the trial Judge “I am not prepared to find further evidence today on such short notice”, and after making a number of comments to his Honour, including a reference to the Court becoming “another Kangaroo Court”, the wife left the court (transcript p 40).
The trial Judge’s disqualification reasons
His Honour commenced his ex tempore reasons for judgment noting the wife had a longstanding application under s 79A of the Act. He also noted the husband had a longstanding application for summary dismissal of the wife’s application.
His Honour then explained the competing applications had on 21 October 2009 been listed for hearing for three days in the fortnight commencing 8 February 2010 but not before Thursday, 11 February 2010.
His Honour further explained, at paragraph 3, as follows:
This matter was listed before me today. The exact reasons for its listing is a matter of some conjecture. On one view it was to be listed for mention, and on another view it was listed for final hearing.
Having recorded that the wife had left the court, his Honour noted the filing of an application by the wife, and he identified two of the orders sought as being orders for the adjournment of the final hearing, and “that an interstate judge, not myself, be allocated to case manage and hear that application”.
His Honour went on to recite what had occurred in the exchanges between himself and the wife and as a result of those exchanges it had become quite clear she was making an application for him to disqualify himself.
At paragraph 6, he noted:
… At the wife’s request I stood the matter down to enable her to get some advice. Initially, she asked me to adjourn her application. The exact details of why that was so are not clear.
His Honour then recorded some facts relating to earlier proceedings and appeals which are not relevant for the purposes of this appeal.
At paragraph 11, his Honour recorded what had occurred in court that day as follows:
When Mr Page of Senior Counsel indicated that he wanted the serious application for bias to proceed, the wife requested some time to consider her position. I gave her from 12 o’clock until 2.15pm to sort out what she wanted to do. At 2.15 this afternoon the wife indicated that she wanted the matter of her application adjourned for some days to get some evidence. When I indicated to her that I was not prepared to allow to [sic] an adjournment of her application without some very clear statement as to what evidence she was going to produce, bearing in mind she had filed an affidavit, she obfuscated persistently about it. I am satisfied there is no further material that she can point to that would enable her to justify the affidavit to which I shall now turn.
Thereafter his Honour referred to his previous involvement in the proceedings, namely, that he dealt with the parenting case on a final basis in August 2009. The trial Judge noted when hearing that matter and refusing an application to adjourn the proceedings, the wife had left the court and he had dealt with the matter on an undefended basis.
His Honour then referred to paragraph 9 of the wife’s affidavit filed 2 February 2010 which we have set out earlier in these reasons.
His Honour went on to recite the circumstances which had occurred in the court when he requested the wife to indicate the further material she wished to call in the application, and explained the wife had handed him a letter which was read by him without objection from the husband’s senior counsel.
His Honour then set out part of the contents of the letter which he noted was addressed to him and quoted from that letter at paragraph 15 of his reasons as follows:
…
You have quite unfairly demanded that I argue an important matter without any notice, namely why you should not preside over my case.
The best reason is that you would ignore all procedural propriety in making that very demand. Clearly Procedural Fairness means no more to you than to Justice Jordan whose many transgressions of legal propriety are now partially documented before the Court.
At paragraph 16, his Honour set out a further quote from the letter as follows:
…
Quite additionally, I feel ill today and have had no sleep - literally, last night.
Further, there is expert evidence before this court, accepted as legal fact, that I am unable, psychologically, to represent myself in court, in particular in relation to children’s matters. This ambush today, is affecting me traumatically, exacerbated by the lack of sleep, but the lack of legal funding has prevented me from bringing the expert psychiatric evidence I long ago had prepared about that issue.
His Honour then observed that the children’s matters had been finally determined the previous August and that while the wife asserted she was psychologically unable to represent herself, she had filed various documents signed by her personally, some of which referred “to decisions of various courts of the common law world”.
Having referred to the fact it was not clear whether the wife had prepared the documents herself or someone else had prepared them on her behalf, his Honour concluded, at paragraph 18:
… It seems therefore, that what she says about her incapacity to proceed on a health basis is nonsense. I have certainly observed nothing in the courtroom today which would support the fact that she is exhausted or tired or incapable of arguing logically.
His Honour concluded saying:
As such, the application that I am determining today must go ahead of any other issue, having regard to the fact that there are other issues relating to the trial, not only in respect of whether it proceeds, but in respect of issues of discovery. (paragraph 18)
His Honour then said it was on this basis it was important that the issue of asserted judicial bias be dealt with quickly and promptly. He noted that the application was only supported by the one assertion in the wife’s affidavit.
His Honour then referred to relevant authorities dealing with bias or apprehended bias in a judicial officer, including Johnson v Johnson (2000) 201 CLR 488; Re JRL: Ex Parte CJL (1986) 161 CLR 342 and Ebnerv Official Trustee in Bankruptcy (2000) 205 CLR 337.
His Honour then referred to the wife’s assertion that Jordan J was biased and acted invalidly, and noted she had not “until at least two days ago” endeavoured to appeal against the orders Jordan J made in October setting the matter down for trial.
At paragraph 33, his Honour said:
... There is no reason, in my view, why the wife should suddenly, at the eleventh hour, bring this application and then try to avoid it being heard. …
His Honour went on to reject any suggestion of prejudgment on his part, or any suggestion he had acted in some way which may be seen as prejudicial to the wife, noting the wife had not articulated to him what she found objectionable to support paragraph 9 of her affidavit.
At paragraph 34, his Honour said:
In my view, this is simply a case where the wife was simply not getting what she wanted and, as such, the application must be dismissed.
The law
The principles which apply in respect of disqualification for actual or apprehended bias are clearly explained in two decisions of the High Court – Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-014 and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. In the former case the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) set out the principles relevant to apprehended bias at 492-493 as follows:
11.… It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) 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.
12.That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (footnotes omitted)
The test to be applied was further expanded by the High Court in Ebner where the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at 348:
The principle to be applied
19.Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
20.This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
21.It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
22.The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
23.Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence. (emphasis added)
In Strahan & Strahan (Disqualification) (2009) FLC 93-414 the Full Court (May, Boland and Thackray JJ) at paragraph 5 of their reasons referred to these two decisions as follows:
It will be noted that the plurality in Johnson considered it unnecessary to undertake a detailed analysis of the principles relating to apprehended bias, preferring to rely on the test of “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.” The plurality in Ebner articulated a two step process to be used in applying that test in individual cases. The first step is the identification of the matters said to give rise to the apprehended bias. The second step requires consideration of the “logical connection” between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits.
Their Honours in Strahan went on, at paragraph 6, to refer to the decision of Mason J (as he then was) in Re JRL; Ex Parte CJL (1986) 161 CLR 342 where his Honour said at 352:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. 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”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. 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. (footnotes omitted)
The test to be applied in respect of actual bias is set out by their Honours Gleeson CJ and Gummow J in ReMinister for Immigration and Multicultural Affairs; Ex Parte Jia (2001) 205 CLR 507 at paragraphs 72 and 102.
It is also appropriate at this point we refer to the principles of natural justice and procedural fairness. The principles are not in doubt. Coleman J exercising the appellate jurisdiction of the Court in KPR & MRS [2007] FamCA 1334 set out extracts from a number of those authorities. At paragraphs 60 to 62 his Honour summarised some of the principles as follows:
60.In National Companies and Securities Commission Ltd v News Corporation Ltd (1984) 156 CLR 296 at 312 Gibbs CJ said:-
The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.
61. In Kioa v West (1985) 159 CLR 550 at 612 Brennan J said that:-
The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.
62. In Allesch v Maunz (2000) 203 CLR 172 at 184 – 185 Kirby J said:-
[35] It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
[36] The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the rights of the present parties. (footnotes omitted)
The parties’ submissions
We read the wife’s submissions handed up in Court on the date of the hearing as making assertions:
·of bias by the trial Judge presiding (without any identified support for that assertion);
·that his Honour accepted evidence from the bar table;
·that senior counsel for the husband misled the Court;
with his Honour “rarely assisting or asking the wife for a response, in the full knowledge that She, as legal fact, was incapable of representing herself”.
The wife’s submissions appear to conflate submissions in respect of the disqualification appeal and the injunction appeal.
It was further asserted by the wife in her written submissions handed up in Court that the trial Judge failed to afford her procedural fairness because “[h]e was entirely unfamiliar with the history and admitted it” (submissions page 6). We note that his Honour’s comment was made in respect of the s 79A application in circumstances where the wife had failed to file a list of documents on which she sought to rely. The written submissions then address the parenting proceedings. We note that no appeal was filed by the wife in respect of those proceedings.
On 19 April 2010 the wife filed, in accordance with our order, further submissions. The submissions were forwarded in two tranches. The submissions cover aspects of the hearing on 11 February 2010, but are substantially directed to the hearing of 15 February 2010. We will deal with the submissions relevant to this date when considering the injunction appeal. Overall the thrust of the submissions is that the conduct of the proceedings by the trial Judge denied the wife procedural fairness.
It is unnecessary we refer to many of the individual complaints raised in the submissions. The majority of the complaints raised are the wife’s subjective interpretation of parts of the relevant transcript. In many places the language employed in the submissions is intemperate and assertions are made without foundation. We have disregarded the submissions which are made without foundation, such as the submission contained in the document headed “Analysis of Transcripts [Two]” at page 1 under the heading “Page 2 Appeal Book 297”. We also do not intend to canvas matters in the submissions which are argumentative and factually inaccurate.
Having carefully read the submissions and the transcript, as we will shortly more fully explain in our discussion of the procedural fairness challenge in the disqualification appeal, we are not satisfied that the transcript of 11 February 2010 (pages 1-10) would, on an objective basis, cause reasonable apprehension of bias in the trial Judge. Rather his Honour was eliciting information from the husband’s senior counsel and from the wife as to the nature of the final relief sought, and any other applications which required determination. Similar comments apply to pages 16-40 of the transcript.
The wife’s complaint that the trial Judge “shamelessly badgers” her (Analysis of Transcripts [Two] p 3 under the heading “Page 14”) is not supported by a reading of the transcript. The trial Judge sought to clarify the orders the wife was seeking, and the basis on which she asserted he could grant the relief.
The wife’s complaints on the topic of contempt are emotive and reflect the tenor of most of her submissions. It is asserted by the wife at page 4 of the Analysis of Transcripts (Two):
Page 16
at 4 His Honour implies three things :
That she must comply with rules to get her former husband dealt with for Contempt.
That the Court cannot deal with Contempt of its own motion
that she is bound to lose if she asks because she hasn’t done her application and evidence the right way.
This is disgraceful. The evidence of the contempts is everywhere in the file. The court has steadfastly refused to address the issue, just as Cronin now continues to do. The husband has twice on affidavit admitted the contempts and the fraud he committed. It is notorious and undeniable that he has thumbed his nose at the court, stolen a million dollars, FROM the court, and never been held accountable. (original grammar and emphasis)
A reading of the transcript discloses that his Honour advised the wife she could make an application that the husband was in contempt of orders. The exchange between the trial Judge and the wife illustrates that his Honour assisted the wife by providing relevant advice to her as follows:
[MS BATEY-ELTON]: You’re saying that there are separate forms for all these things?
HIS HONOUR: It is a separate cause of action and the rules quite specifically set out how you’re to do it. If that is what you’re intending to rely on, it won’t take very long to deal with.
The husband’s written submissions were prepared without the benefit of the wife’s written submissions. At paragraphs 14 and 15 it was submitted:
14.The reasons given by the trial Judge are, in the respondent’s submission, based upon two arguments:
(a)that no particulars of actual or perceived judicial bias were brought to the trial Judge’s attention despite his requests that that be done; and
(b)any that might have been adverted to did not constitute a basis of a reasonable apprehension that Justice Cronin would not decide the case impartially or without prejudice.
15.It is the respondent’s submission that the dismissal of the application was appropriate. (respondent’s submissions filed 8 April 2010, p 4)
Senior counsel for the husband in his oral submissions emphasised the time the proceedings had been awaiting hearing, including the husband’s application for summary dismissal, and stressed the need for the trial Judge to have dealt with the disqualification application, as his Honour did, promptly.
Discussion
Procedural fairness
It is convenient we consider the grounds asserting a lack of procedural fairness before moving to the actual and apprehended bias challenges. We have already set out some details of how the matter proceeded before his Honour on 11 February 2010.
The transcript discloses, at page 9, that the trial Judge sought to elicit from the wife what applications she was pursuing, and that his Honour assisted the wife by referring to the fact she may have some concern about him hearing the case.
Initially the wife said she could not say whether she wished to proceed with an application that Cronin J disqualify himself. His Honour clearly explained to the wife if she deferred the hearing of an application for disqualification, and later attempted to pursue that, she may be regarded as having waived her rights (transcript, p 13).
After the trial Judge stood the matter down while he spoke with the case management judge, he directed the wife’s attention to the assertion in paragraph 9 of her affidavit (which we have set out above) and enquired of her the nature of the “gross misconduct” she referred to in that paragraph. To assist the wife his Honour ensured she was provided with copies of his two judgments of 24 August 2009, and further stood the matter down and indicated he would deal with the matter that afternoon. Before adjourning at 12.00 noon the following exchange occurred between the trial Judge and the wife:
HIS HONOUR: Now, are you quite clear on what you have to do, [Ms Batey-Elton]?
[MS BATEY-ELTON]: Yes.
HIS HONOUR: The gentleman over there will provide you with a copy of the two judgments from August, the court officer, he’ll provide you with those, and at a quarter past 2, I’ll be asking you to explain to me why I should grant the order that you have sought. Quite clear?
[MS BATEY-ELTON]: Yes.
HIS HONOUR: All right. A [sic] quarter past 2. (transcript, 11 February 2010, p 30)
When the matter resumed at 2.15 pm the trial Judge permitted the wife to rely on a letter she had written addressed to him as her written submissions. Relevant parts of that letter are set out in the trial Judge’s reasons and have been extracted by us.
We are satisfied that the trial Judge afforded the wife procedural fairness. While the wife raised complaints about his Honour’s reasons of 24 August 2009 she did not seek to appeal his Honour’s orders. She had more than adequate time to file an application seeking his disqualification after delivery of those reasons but did not do so until 10 February 2010, although she affirmed her affidavit in support of that application on 2 February 2010.
Even if the wife mistakenly thought the hearing on 11 February 2010 was a directions hearing, she had been aware since October 2009 the matter was listed for a three day hearing in February 2010. Her applications for an adjournment or further discovery could not be heard by the trial Judge until the question of his potential disqualification was heard and determined. The disqualification application required a prompt determination.
The excerpts from the transcript to which we have referred disclose the trial Judge:
·assisted the wife to identify her relevant application;
·confirmed the wife did seek that he be disqualified from hearing her s 79A application;
·stood the matter down to allow the wife to make a telephone call;
·drew the wife’s attention to the relevant paragraph of her affidavit in support of the application which lacked particulars, and directed her attention to the need to give particulars of the “gross misconduct” alleged;
·provided the wife with copies of the only two judgments delivered by his Honour;
·explained if the wife did not proceed promptly with the application she may later be said to have waived her right to do so;
·stood the matter down to give the wife the opportunity to review the judgments and particularise her complaint of actual or apprehended bias; and
·permitted the wife to rely on her letter dated 11 February 2010 in lieu of written submissions.
In these circumstances, and having regard to the fact the wife left the court before the proceedings concluded, we are satisfied there was procedural fairness afforded to the wife, and there is no merit in the grounds asserting to the contrary.
Actual or apprehended bias
We turn then to deal with the complaint of actual or apprehended bias. No particulars were advanced by the wife of actual bias. Although she made a generalised assertion of “gross misconduct” by the trial Judge in respect of the parenting proceedings it must be remembered that his Honour’s judgments in those proceedings reveal his Honour was unable to deal with the wife’s assertion the parenting proceedings should be adjourned on the basis her request to issue a subpoena had been refused by a Registrar, as the wife had not sought to review that decision of the Registrar.
His Honour also adverted to the wife’s assertion she was unable to represent herself. We note that before us the wife tendered an affidavit annexing a report of Dr R dated 6 November 2006 but that report was not before the trial Judge in the parenting proceedings. The trial Judge, at paragraph 31 of his first reasons dealing with the adjournment sought by the wife, said:
In terms of the balance between procedural fairness, therefore, and the important welfare of a child, it seems in this case that this case has gone on for too long, and the child needs the matter over and done with. On that basis, there is no reason why the trial should not proceed. The wife’s application in the case filed 17 August 2009 is therefore dismissed.
It must be remembered at the time of the hearing of the parenting application the child S was a young person of 15 and a half years of age. His Honour had to balance any detriment to her welfare caused by further delay with the matters raised by the wife. His Honour found, in the proper exercise of his discretion, that the child’s best interests required finality to the litigation. Nothing in his Honour’s adjournment reasons could be construed as demonstrating bias, either actual or apprehended, nor were we directed to any part of the transcript which would lead a reasonable person to apprehend bias in the trial Judge.
In respect of the substantive parenting applications his Honour noted, at paragraph 10 of his reasons, the wife had failed to file any relevant material notwithstanding orders made by Jordan J on 29 June 2006. At paragraph 20 of his reasons, the trial Judge noted that Mr B could not be a McKenzie Friend in the parenting proceedings as he was a potential witness in those proceedings, and had been interviewed by the family report writer. Significantly his Honour noted, at paragraph 15 of his reasons, the circumstances in which he heard the matter on an undefended basis. As we have earlier set out, his Honour explained:
Upon the refusal of the application, the wife then departed the court saying that there was no point in her further involvement and that the Court was acting as a “kangaroo court”.
Nothing which we have read, or to which we were directed by the wife supports a conclusion that Cronin J demonstrated actual bias against the wife, or that such bias could be apprehended by a reasonable bystander.
No particulars of actual or apprehended bias having been alleged by the wife, and having regard to the wife’s conduct in leaving the court before the matter was completed on 11 February 2010, we are unable to discern what more his Honour could have done but to proceed to determine the disqualification application in the wife’s absence, as he did. We are satisfied that the grounds asserting actual or apprehended bias are without merit.
The injunction appeal
Before canvassing the complaints raised in this application for leave to appeal it is important we record that at the hearing before us we permitted Mr B, as a person affected by his Honour’s orders, to personally address us. We will in the course of our discussion refer to Mr B’s submissions.
The gravamen of the wife’s challenge to the injunction granted on 15 February 2010 is based on asserted bias by the trial Judge, and a lack of adequate reasons for his Honour’s decision to restrain Mr B from being present in the court during proceedings between the husband and wife, or attending with the wife to inspect documents produced by the National Australia Bank. We will deal separately with these challenges but before doing so it assists comprehension of these challenges if we set out his Honour’s orders made that day in full. We note his Honour made two separate orders and a separate third set of orders. Omitting the formal parts of the three orders they provide as follows:
(a)the first order:
IT IS ORDERED
1.That the wife’s oral application for a stay of the order made on 11 February 2010 dismissing her application that I disqualify myself is dismissed.
(b)the second order:
IT IS ORDERED
1.That until further order [MR B] is restrained from being in the court room of this Court during any proceedings between [Mr Elton] and [Ms Batey-Elton].
(c)the third orders:
IT IS ORDERED
1.That the wife’s application under s 79A of the Family Law Act 1975 (Cth) be adjourned to 27 April 2010 for final hearing before me.
2.That the husband’s response to the s79A application and his application seeking summary dismissal filed 27 October 2008 be adjourned to 27 April 2010 before me.
3.That by 4.00pm on 26 February 2010 the wife if she be so advised, serve upon the solicitor for the husband a set of questions (up to Twenty in number) relating to the facts in dispute between the parties, enabling the husband to file a response thereto by 12 March 2010.
4.That the response of the husband to any such questions be filed and served by 4.00pm on 12 March 2010.
5.That paragraphs 1 and 3 of the application in case filed by the wife on 10 February 2010 is formally withdrawn.
6.That the application of the wife filed 10 February 2010 by way of review of Registrar Kane’s orders of 2 February 2010 is dismissed.
7.That the Case Management Judge for the Brisbane Registry appoint a registrar to case manage the proceedings pending hearing on 27 April 2010.
8.That the appointed registrar have power to extend the times for filing of affidavits by both parties but not such as to prevent the final hearing commencing on 27 April 2009 [sic].
9.That the application of the husband filed 31 March 2009 is withdrawn.
10.That the wife file and serve on the solicitor for the husband, any affidavit upon which she wishes to rely by 4.00pm on 19 March 2010.
11.That the husband file and serve any further material upon which he wishes to rely by 4.00pm on 16 April 2010.
12.That by 4.00pm on 22 February 2010, but not thereafter, the wife have leave to inspect the documents produced under subpoena by the National Bank of Australia (No 18 dated 13 November 2007) together with any other subpoenaed documents provided, within the precincts of the Court and for that purpose, [MR B] be and is hereby precluded from attending.
13.That the registrar provide to the wife a copy of the affidavit of [the husband’s solicitor] filed 31 July 2007.
14.That by 4.00pm on 26 February 2010 to the extent that they exist, the husband provide to the wife tax returns for:
(a) himself;
(b) [C Pty Ltd];
(c) [C & K Elton Family Trust]
relating to the periods ending 30 June 2004, 2005 and 2006.
15.That in addition, the registrar issue any subpoenae requested by the wife provided she can establish apparent relevance to the issues in dispute as discussed this day. In the event that the Registrar is in doubt as to whether or not to issue such subpoenae, the matters be referred to me for hearing and determination.
16.That the husband’s costs of this day be reserved to the trial judge.
Although the Notice of Appeal seeks to challenge all of his Honour’s orders no oral arguments were addressed to us in respect of the third set of orders made by his Honour on 15 February 2010. Many of these orders are designed to assist the orderly conduct of the final hearing, and provide the wife with an opportunity to pursue obtaining relevant information from the husband.
The second tranche of the wife’s written submissions filed 19 April 2010 although not making specific reference to these orders, or the basis on which it is asserted the trial Judge erred other than a general assertion of lack of procedural fairness, appears to cover this aspect of the injunction appeal. We will deal with this aspect of the wife’s injunction appeal after our discussion of the wife’s challenge to the first two orders made on 15 February 2010.
In her separate document headed “Analysis of Transcripts [Three]” the wife sets out a number of complaints about the trial Judge's conduct on 15 February 2010. The wife asserted the trial Judge had failed to give reasons for his refusal to permit Mr B to appear as her advocate. This submission is inaccurate as the transcript discloses (transcript, 15 February 2010, pp 2-3) his Honour explained to the wife the difference between a person appearing as an advocate, and an unrepresented person having assistance from someone, and then said why he did not propose to allow Mr B to appear as the wife’s advocate. Mr B had interjected in the discussion between the trial Judge and the wife and said “I am here to ensure you comply with the law”. Later Mr B challenged his Honour’s decision and said to his Honour “[a]nd you need to be aware of the law in relation to assistance. It is not a McKenzie friend”.
In his oral submissions to us, Mr B first addressed us in respect of Order 12 made on 15 February 2010. He asserted that there had been no application before the trial Judge for an order restraining him from accompanying the wife to inspect documents produced by the National Australia Bank, nor had his Honour given any reasons for the order made.
The husband’s senior counsel acknowledged that there was no application by the husband which sought restraint on Mr B accompanying the wife to inspect documents. Although he acknowledged there were safeguards in place in the registry which would alleviate any concern about documents being dealt with inappropriately in the course of inspection, he nevertheless submitted that his Honour was entitled, by reason of his implied powers to control the proceedings, to have made such an order in the light of the conduct exhibited by Mr B in court.
The authorities which deal with the necessity for adequate reasons are well known and do not require discussion in the context of this application for leave to appeal (see Bennett v Bennett (1991) FLC 92-191 and Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378).
The trial Judge’s reasons do not reveal any discussion on this topic other than in the injunction reasons where his Honour records the making of a similar earlier order. We are simply unable to discern the basis on which the order was made. We are satisfied that the lack of reasons constitutes appealable error, and that Order 12 of his Honour’s orders should be set aside.
In dealing with the substantial complaint, the injunction, Mr B submitted that his Honour:
·failed to give adequate reasons for the injunction granted;
·failed to afford procedural fairness;
·failed to allow submissions to be made by the wife in respect of a repeated application that the hearing be adjourned;
·was not procedurally fair or showed bias in dealing with Mr B on 24 August 2009 and that his Honour’s conduct “carried forward to the hearing on 11 February and on the 15th” (this submission appeared to encompass the wife’s submission that his Honour’s opinion of Mr B had been adversely affected by Ms O’s report dated 7 April 2006); and
·that his Honour’s discretion miscarried in that he failed to give appropriate weight to the wife’s disability by effectively excluding from the proceedings the person who could assist her when she did not have legal representation.
The trial Judge’s injunction reasons
In his ex tempore reasons delivered on 15 February 2010, his Honour commenced by explaining that Mr B had been providing advice and assistance to the wife in the proceedings. His Honour then said for reasons which followed he had excluded Mr B from being in the courtroom on 15 February 2010 “and made injunctions against him being present in any future courtroom involving these proceedings”.
At paragraph 2 of his reasons, the trial Judge referred to the nature of proceedings in the Court and said:
It is a drastic step to exclude any person from a court room but particularly a person who may be providing constructive assistance to a litigant in person. Except in certain circumstances, proceedings in this Court should be held in open court. Although anonymity attaches to all proceedings under the Family Law Act 1975 (Cth) (“the Act”), it is a fundamental tenet of justice that it be transparent. That however, must be subject to the right of the Court to control its process and ensure that proceedings are not disrupted not only to the disadvantage of the litigants but also to the resources of the Court.
His Honour went on, at paragraph 3, to say “[Mr B] is a disruptive influence”.
His Honour then set out his involvement in the parenting proceedings, noting at the time of those proceedings Mr B was providing some form of assistance to the wife. He then said “I made final parenting orders which have not been the subject of an appeal” (paragraph 4).
His Honour went on to refer to a number of things he had said in his parenting reasons about Mr B. Those matters were summarised in five dot points as follows:
·The wife is in a relationship with [Mr B];
·I was told by senior counsel for the husband that [Mr B] purports to be a lawyer;
·[Mr B] has apparently accompanied the wife for a long time in these proceedings;
·At various times he has endeavoured to speak for her and assist her;
·Senior counsel for the husband alleged that [Mr B] claimed to have legal qualifications but he had been refused admission as a legal practitioner in Queensland by the Court of Appeal in May 2005. (paragraph 5)
His Honour then referred to the fact he had considered whether, because of the decision of the Court of Appeal in Queensland to refuse Mr B’s admission, he was entitled to take judicial notice of those proceedings.
At paragraph 10, his Honour said:
[Mr B’s] constant association and attendance with the wife would enable me to conclude that he is aware of the assertion about him being common knowledge and he has not denied it.
Having referred to an assertion made by senior counsel for the husband during the course of the parenting proceedings to the effect that the refusal of Mr B’s admission was a matter of common knowledge, his Honour went on to note he could have regard to the provisions of s 144 of the Evidence Act 1995 (Cth) (“the Evidence Act”). We note Mr B was in court when this assertion was made.
While the question of whether s 144 of the Evidence Act covers the field on the question of judicial notice, or the principles of common law operate concurrently appears resolved (see Gattellaro v Westpac Banking Corporation (2004) 204 ALR 258; [2004] HCA 6 where in relation to the New South Wales legislation Gleeson CJ, McHugh, Hayne and Heydon JJ observed at [17] that “there would appear to be no room for the operation of the common law doctrine of judicial notice, strictly so called, since the enactment of the Evidence Act 1995 (NSW) s 144”), a wider approach to the reception of evidence which falls under the doctrine is advanced by the learned editors of Butterworths Cross on Evidence Australian Edition, Vol 1 (at 124 [3160]).
It is unnecessary that we express any view as to whether his Honour was correct in his consideration of the decision of the Queensland Court of Appeal. At paragraph 12 of his reasons, his Honour makes it abundantly clear he did not have regard to that decision save for two limited matters, namely that Mr B had been refused audience (a fact not in issue) and that:
…the Queensland Court of Appeal has made a finding that [Mr B] fails to distinguish between what I would describe as objective advocacy and his own desire to articulate vociferous objection to the process of this Court. (paragraph 13)
It appears to us, however, from the latter parts of his Honour’s reasons that he relied on his own observations and experience of Mr B’s conduct in court in determining that the injunction should be made, and did not rely on the findings of the Queensland Court of Appeal.
At paragraph 15 of his reasons, the trial Judge referred to, without naming the family report writer, the psychologist who prepared a report for the parenting proceedings and quoted from that report where the psychologist said “[Mr B] presented as a controlling man who maintained a self-focus in respect of his personal values and skill”. We will return to this aspect of his Honour’s reasons when considering the wife’s request to adduce the tape recording of the joint interview of herself and Mr B by the psychologist.
At paragraph 16 of his reasons, his Honour referred to the fact that the husband had provided a case outline document but no list of documents had been provided by the wife necessitating the trial Judge to examine the extensive file. During the course of this discussion his Honour noted that there had been previous orders of the Court when Mr B had been excluded from attendance with the wife when she was permitted to examine material produced under subpoena.
Having referred to the aforementioned matters as background the trial Judge then turned to events of 15 February 2010.
At paragraph 18, his Honour recorded that at the commencement of the wife’s application Mr B was seated beside the wife at the bar table and the wife requested that he speak for her. The trial Judge recorded “I indicated that I had previously ruled that that was not going to happen”.
His Honour went on to note that the wife could have assistance from any person she chose “providing that person was not disruptive of the proceedings”. We note that later in the proceedings that day the wife did have the assistance of another person as a McKenzie Friend.
His Honour then referred to the Full Court judgment in Batey-Elton & Elton (No 2), in particular, to reasons given by Warnick J refusing Mr B a right of audience. At paragraphs 20 and 21, his Honour noted:
20.In the judgment on 24 August 2009, I said that no-one objected to the presence of [Mr B] at the bar table however I expressed concern that his interruptions were noticeable including his agitation when counsel spoke and his consistent and loud discussions with the wife which were a distraction.
21.I explained to the wife the distinction between having someone act for or speak for her as an advocate as distinct from a person who might provide assistance to her. This was a matter about which there could be no misunderstanding because it had been ruled upon by me previously. The wife asked me to repeat the reasons and because I and the Full Court had previously indicated what role [Mr B] could fulfil, I declined. To repeat reasons would not only have been unnecessary, it was a time wasting exercise.
The trial Judge went on to record that Mr B had interrupted on a number of occasions and refused to be seated or to leave the bar table when directed.
At paragraph 23, his Honour referred to Mr B’s statements and said:
[Mr B’s] interruptions included statements by him to the effect that he was present to “ensure” that I complied with the law.
His Honour went on to note the wife had asserted she was being denied natural justice when his Honour refused a stay of his order that he not disqualify himself.
His Honour then dealt with the wife’s assertion that he could not hear the substantive case because she had lodged an appeal against that decision.
His Honour then recorded:
… When I indicated that if that was the position she was adopting based on advice, she was wrong. [Mr B] interrupted to say that he would not be “defamed from the bench”. When I said I would proceed to hear the application of the wife and explained what a stay application was, [Mr B] said that I was “running a star chamber”. I requested he leave the court but he refused. He said that the wife was not capable or [sic] arguing the case and it was unfair to make her do so. He then said:
Why don’t you comply with the law? (paragraph 24)
At paragraphs 26 and 27, his Honour went on to say:
26.The difficulty was more pronounced however because of [Mr B’s] interruptions and refusal to recognize the rulings and authority of the Court. His presence was distracting and time-wasting.
27.It would appear from my observations on 15 February 2010 that matters have become worse and [Mr B] is more brazen.
His Honour then explained that after he had adjourned temporarily and requested the attendance of the Australian Federal Police Mr B had left the court. Having referred to the common law in relation to contempt in the face of the Court, his Honour concluded that Mr B’s behaviour was “nothing short of contemptuous”. However, notwithstanding that finding his Honour went on to say he had excluded him “so that the long-standing issues between the parties could proceed. I am concerned that any future involvement of [Mr B] will simply see a repetition of this behaviour” (paragraph 30).
His Honour then referred to the decision of the Full Court in MG & MG (2000) FLC 93-034, a decision relating to the limits on the role of a McKenzie Friend. His Honour postulated, at paragraph 32:
Thus, it is clear that there are cases where an adviser or assistant can speak to the Court but not in the circumstances envisaged by [Mr B] nor having regard to his behaviour.
At this stage of his reasons his Honour had determined that Mr B should not be permitted to act as a McKenzie Friend for the wife and turned to consider what his Honour described as “his [Mr B’s] public right to be present in court”. Having referred to the fundamental presumption of the common law that justice should be administered in an open court, his Honour referred to s 121 of the Act and explained notwithstanding that provision it was “the workings of the Court … which are open to scrutiny”.
His Honour then referred to the decision of Kirby P (as he then was) in Raybos Australia Pty Ltd v Jones [1985] 2 NSWLR 47. After citing from that judgment his Honour explained contemptuous behaviour created disorder and that such behaviour used up valuable resources and adversely affected other people who wanted their cases heard.
At paragraph 37, his Honour said:
[Mr B] shows contempt for the Court and disrupts its processes. He refuses to comply with directions to desist. There is no sign of his behaviour abating. There is no alternative other than to exclude him for [sic] the court room.
His Honour then referred to the fact he had taken into account the wife’s assertion she was incapable of conducting the case without either Mr B’s advocacy or assistance and concluded it was not decisive in the wife’s favour. His Honour went on to note that the wife had the “right to appropriate and respectful assistance” which Mr B could not provide.
At paragraph 40, his Honour said:
The Court must control its own process. It is a fundamental principle of the administration of justice that both sides have an opportunity to be heard. Interruptions and the disruption caused by [Mr B] wasted significant time. His contempt for the Court and its processes is obvious. He is not an appropriate person to be permitted in the court room during these proceedings or at any time in the future relating to these proceedings until such time as he indicates that he will not act in a contemptuous way.
Later, at paragraph 41, his Honour noted that Mr B was not in the courtroom when the order was made and as a matter of necessity, as well as justice, he should be provided with a copy of his Honour’s orders.
It is also instructive at this point to note that his Honour’s order is expressed to be until further order of the Court and, as senior counsel for the husband readily conceded before us, there is no bar to the wife bringing an application in the future, should she wish to do so, to have the injunction dissolved.
Discussion
We indicated at the commencement of these reasons we would give our reasons in respect of the wife’s application to adduce witness statements from persons who were in court on 15 February 2010, as well as our reasons in respect of an audio tape recording of the interview of the wife and Mr B by Ms O.
We reject the wife’s application in respect of the admission of witness statements. We do so on the following bases. First, we have the benefit of the transcript of the proceedings, and have permitted the wife to file submissions analysing that transcript. Secondly, we perceive the witness statements if untested would be of little utility. Thirdly, it is likely the evidence of any deponent in court as to his or her observations would be subjective and controversial. In considering this last point we have regard to the principles relating to the adducing of further evidence discussed by the High Court in CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828 and in particular paragraphs 113 -144 of the judgment of McHugh, Gummow and Callinan JJ.
We also reject the wife’s application to adduce the tape recording of the joint interview with Ms O. We have no knowledge of the circumstances in which the recording was made or its authenticity.
Further, on our reading of Ms O’s report we are satisfied that the extract of that report contained in the trial Judge’s reasons was not based primarily on things said at the interview, but her observations of the manner and conduct of both the wife and Mr B. In short, even if we were satisfied as to the authenticity of the tape, there would be no utility in its tender.
The transcript of the proceedings on 15 February 2010 is illuminating. The transcript discloses that at the commencement of the hearing the wife indicated to the trial Judge that she required the assistance of a qualified person at the bar table in the form of Mr B. The following exchange then took place:
[MS BATEY-ELTON]: And I require the assistance of a qualified person at the bar table in the form of [Mr B] to assist me.
HIS HONOUR: Yes, well, I’m not going to grant that application for the same reasons that I refused that last time.
[MS BATEY-ELTON]: Could you repeat those reasons, please, because I really don’t remember why. I require assistance. I’m not able to properly represent myself, so that it would be an injustice to me to not have assistance at the bar table.
HIS HONOUR: The only person who is entitled to appear on behalf of another person is a person who is admitted as a legal practitioner. Is [Mr B] a person who is a person who is qualified and authorised to appear in the Supreme Court of Brisbane?
[MS BATEY-ELTON]: With respect, your Honour, I believe that under the law, you are – a person is required – can obtain any assistance that is necessary whether they’re admitted to the bar or not.
HIS HONOUR: There is a distinction between being represented by somebody and having some assistance from somebody. If you’re asking me for [Mr B] to appear on your behalf, the answer is no, and I don’t intend to repeat the reasons I gave last year. If you’re asking for [Mr B] to provide you with some assistance, then I have no problems about him being a person who can make notes for you, and do those sorts of things. But the minute that a person who provides assistance to you becomes a person who is an interruption, a distraction, I’ll end that assistance. Do you understand that?
[MS BATEY-ELTON]: Yes, I do. But I would like [Mr B] to be able to put the reasons to you now. Thank you.
HIS HONOUR: The answer is no.
[MR B]: Your Honour, I am here ‑ ‑ ‑
HIS HONOUR: [Mr B], you can sit in the back of the court right now, please.
[MR B]: I am here to ensure that you comply with the law.
HIS HONOUR: [Mr B], you can either leave the courtroom now, or you can sit in the back of the court. Which do you want?
[MR B]: It’s an open court.
HIS HONOUR: [Mr B], it is my court.
[MR B]: And you should comply with the law. You haven’t taken submissions on the subject.
HIS HONOUR: Would you ask the security people to come to the court, please. I’ll have you removed from my court unless you agree to sit in the back of the court.
[MR B]: Your Honour, you have just given consent ‑ ‑ ‑
HIS HONOUR: No, there’s no argument about this, [Mr B].
[MR B]: There is an argument about you complying with the law, your Honour.
HIS HONOUR: [Mr B], you are not a party to these proceedings. You are not a legal practitioner representing [Ms Batey-Elton] and, therefore, you can remove yourself from the bar table. I’ve agreed ‑ ‑ ‑
[MR B]: And you need to be aware of the law in relation to assistance. It is not a McKenzie friend.
HIS HONOUR: Good. Then, sit down.
[MR B]: That is actually in error.
HIS HONOUR: We’ll adjourn the court, please. (transcript, 15 February 2010, pp 2-4)
On his Honour resuming, the following occurred:
HIS HONOUR: All right, now, [Mr B], you’ll sit at the back of the court, please. You will not sit at the bar table, and that is an order. Please remove yourself from the bar table and sit in the body of the court. There is no further discussion. Please move yourself to the back of the court, or I’ll have you removed from the courtroom. Would you remove this gentleman, please? At this stage he can sit in the back of the court, but I require you to stay with him and stay until I direct otherwise. Now, please go. Now, [Ms Batey-Elton], if you require assistance from this gentleman, I’m prepared to allow you to have that assistance. But the moment he becomes disruptive, as he has been this morning – whether he thinks so or otherwise – he will be removed from the court. Do you understand that?
[MS BATEY-ELTON]: Yes, your Honour, I understand.
HIS HONOUR: Right. Now, to the extent that you need to get assistance from him, normally I would permit him to sit beside you. Having regard to his performance this morning, that’s not going to happen until I’m satisfied he can learn the rules of my court. All right?
[MS BATEY-ELTON]: Yes, your Honour. (transcript, 15 February 2010, p 4)
Thereafter his Honour allowed a Mr H to assist the wife as a McKenzie Friend.
His Honour then, in response to the wife’s application, determined he would hear her stay application in respect of his orders made on 11 February 2010 when he refused to disqualify himself.
The wife commenced her submissions by asserting that she apprehended the trial Judge was biased. The following exchange then occurred:
[MS BATEY-ELTON]: You can’t rule yourself whether to take yourself off the case. You cannot decide yourself whether you’re biased or whether my apprehension is correct or not. You can’t decide on whether you’re biased. In my opinion you are. This cannot go ahead now.
HIS HONOUR: All right. Anything else you want to say?
[MS BATEY-ELTON]: Yes, just one moment, please. It’s my opinion that any decision that you make today would be a miscarriage of justice and a qualified person who has a law degree needs to say that to tell you because you don’t seem to fully comprehend why it would be so improper.
HIS HONOUR: Yes. That’s it? Anything else you want to say?
[MS BATEY-ELTON]: Yes, just one moment, please. I need [Mr B] to make the case.
HIS HONOUR: Yes, well, I have already ruled that can’t happen, so the next point.
[MS BATEY-ELTON]: You are denying me natural justice by doing that. I need all the help that I can get.
HIS HONOUR: Anything else?
[MS BATEY-ELTON]: I have been denied for the last three years natural justice.
HIS HONOUR: Just concentrate on the question.
[MS BATEY-ELTON]: I have been denied legal funding, whereas the other side has spent over $300,000 on legals.
HIS HONOUR: All I’m going to permit you to do at this stage is to address the issue of whether there ought to be a stay of the order I made on Thursday. Now, if you don’t understand what that application means, because you seem to be under some misapprehension, presumably given to you by somebody who says they have legal training, then I will clarify that issue for you. [Mr B], sit down, please?
[MR B]: I will not be defamed from the bench.
HIS HONOUR: Would you remove [Mr B] from the court room, please, physically if needs be.
[MR B]: You need to take ‑ ‑ ‑
HIS HONOUR: [Mr B] – will you remove him from the court room, now, or I will call the Australian Federal Police who will have you under arrest. [Mr B], you are really ‑ ‑ ‑
[MR B]: I’m looking for the stars on the ceiling in this court. You are running a star-chamber court with all of the attributes of that. (transcript, 15 February 2010, pp 6-7)
Shortly after that exchange occurred his Honour directed the wife’s focus to the stay application. The following occurred:
HIS HONOUR: Well, I have already indicated to you twice this morning that if that’s the advice you’re getting it’s wrong. Now, do you want me to explain to you what a stay application is?
[MS BATEY-ELTON]: Yes.
HIS HONOUR: All right. A stay application is very simple. The rules of the court, which apply in all courts of Australia, are that a stay is not something that happens automatically when an appeal is lodged. You have to make an application for a stay. A stay is only granted in extraordinary circumstances. The matters that are taken into account in respect of a stay application include that if the matter proceeded an appeal would be rendered nugatory. If the matter proceeded then a court is obliged to take into account when the appeal would be heard and a number of other matters. Now, you haven’t addressed any of those. If you wish to address those, I will hear you. If you don’t intend to address those issues, then you can sit down.
[MR B]: She is not capable of answering those issues, and it’s unfair of you to try and make her absolutely.
HIS HONOUR: We might just wait – [Mr B], if you interrupt again, then I will adjourn until the Australian Federal Police arrive. Now, sit down.
[MR B]: Why don’t you comply with the law? It was put to you on Thursday in writing, multiple reasons why. Comply with the law.
HIS HONOUR: Adjourn the court, please. (transcript, 15 February 2010, p 8)
The law
The learned authors of Halsbury’s Laws of Australia (Greg Sarginson, LexisNexis Butterworths, Halsbury’s Laws of Australia, Vol 8 (at 13 April 2010), 125 Courts and the Judicial System, ‘Nature of Courts’ [125-10]). referred to the inherent and implied power of a superior court to control its processes as follows at 125-10:
Procedure A court exercising judicial functions has an inherent or implied power to regulate its own procedure, save in so far as rules of procedure are laid down by law. The judges of superior courts and most other courts of record have the power to make rules of court regulating the procedure of the court. (footnotes omitted)
In DJL v Central Authority (2000) 201 CLR 226 at 240-241 the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), with particular reference to this Court as a federal court created by statute, said:
24.Section 21(1) of the Family Law Act provides that a court “to be known as the [Family Court] is created” by that statute. Original jurisdiction is conferred on the Family Court by s 31 and appellate jurisdiction by s 93A(1). Jurisdiction is also conferred by other statutes, including the Child Support Act (ss 101, 102, 105), the Bankruptcy Act 1966 (Cth) (s 35A), and the Trade Practices Act 1974 (Cth) (s 86B).
25. The Family Court is thus not a common law court as were the three common law courts at Westminster. Accordingly, it is “unable to draw upon the well of undefined powers” which were available to those courts as part of their “inherent jurisdiction”. The Family Court is a statutory court, being a federal court created by the Parliament within the meaning of s 71 of the Constitution. A court exercising jurisdiction or powers conferred by statute “has powers expressly or by implication conferred by the legislation which governs it” and “[t]his is a matter of statutory construction”; it also has “in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred”. It would be inaccurate to use the term “inherent jurisdiction” here and the term should be avoided as an identification of the incidental and necessary power of a statutory court. (footnotes omitted)
We accept that this Court has such powers as are incidental and necessary to the exercise of its jurisdiction and that the order made by his Honour was pursuant to this power.
Our reading of the transcript, which we have set out in some considerable detail, discloses that Mr B’s conduct was disruptive, disrespectful and inappropriate. His Honour’s reasons for excluding Mr B from the courtroom, and continuing that exclusion until further order, were soundly based.
The procedural fairness challenge and challenge to the third set of orders made 15 February 2010 (Orders 1-16)
While a number of complaints are raised in the wife’s submissions about the trial Judge’s conduct on 15 February 2010, (and in particular those addressed to pages 43 to 94 of the transcript), we are satisfied those complaints are without merit. A reading of the transcript of 15 February 2010, and particularly those portions of the transcript where his Honour canvassed with the wife what she asserted needed to be done to ensure her matter was ready for trial, disclose his Honour:
·carefully went through each event recorded on the cover sheet of the file to check with the wife her understanding of what had happened on each appearance;
·ascertained when orders for discovery had been made;
·established that Jordan J had made orders the wife could issue subpoena for production of documents but the wife was unable to confirm whether she had complied with the time limits in Jordan J’s order for issue of subpoena and subsequent inspection of documents;
·noted that the wife had applied for interim costs, but the order made in her favour was set aside on appeal;
·noted that on 5 September 2007 an order was made for the filing of documents. The wife conceded although she asserted non-compliance with that order by the husband she had not brought enforcement proceedings;
·established that the husband had filed two affidavits on 14 February 2007 and 23 February 2007 in compliance with O’Reilly J’s orders, and noted the wife’s assertion that the affidavits provided inadequate discovery;
·established on 11 September 2007 Mr Baston of counsel, who then represented the wife on a pro bono basis, had particularised her claim under s 79A. His Honour also sought to elicit from the wife whether she relied on any other bases to support her claim under s 79A. He ascertained that one of the wife’s claims was that the value of the assets was different to that asserted to the Court at the time of the making of the consent orders;
·confirmed that on 2 November 2007 Murphy J granted leave to the wife to inspect documents and made other orders directed to the National Australia Bank;
·ascertained that the wife’s application filed 30 April 2009 had not been determined and was before him;
·advised the wife he would make an order for the issue of subpoena if the wife could satisfy him of the relevance of the subpoena to her claim;
·advised that he would case manage the case and make necessary directions to ensure the matter was ready for hearing;
·ascertained from the wife the relevant time period in respect of which she sought bank statements (being the period from the sale of the rural property H until the purchase of a subsequent property by the C Elton Family Trust);
·assisted the wife by explaining that obtaining stock sale records would not establish her claim livestock had been hidden by the husband and pointed out the necessity for the wife to have access to the relevant income tax returns to enable her to track livestock records;
·concluded in order for the wife to obtain relevant information she should have the opportunity to administer specific questions to the husband;
·had documents produced under subpoena issued on behalf of the wife including documents produced relevant to C Pty Ltd brought into the court, confirmed the wife had inspected the documents, and allowed her a further opportunity to inspect the documents;
·acknowledged that the wife could have a Mr Q, a retired bank manager, assist her inspection of bank documents;
·confirmed that the case should be able to be properly prepared by the last week in April for hearing (and the wife confirmed “that would suit me”);
·offered the wife the opportunity to proceed with an application for “legal funding” and the wife indicated she did not want to pursue such an application;
·explained that he would appoint a Registrar to assume responsibility for management of the file who could, if necessary, refer any application filed to his Honour;
·noted the wife advised she withdrew parts of her application filed 10 February 2010 and gave reasons (recorded at page 94 of the transcript) why the parts of the wife’s application which she sought to pursue should be dismissed;
·confirmed the witnesses the wife proposed to call in her case; and
·made directions for filing affidavits of evidence in chief.
Having regard to the fact that the wife is self represented, we have set these matters out in some detail in order to assist her understanding of these reasons, and the future conduct of her case. The matters chronicled above demonstrate the trial Judge extended procedural fairness to the wife during the hearing of 15 February 2010, and further that his Honour actively assisted the wife to clarify the bases on which she sought to agitate her s 79A application, afforded her the opportunity to inspect relevant documents already produced under subpoena, to ask specific question of the husband, and made orders for the production of relevant income tax returns of the husband, C Pty Ltd, and the family trust. In short, his Honour’s conduct of this interlocutory hearing was in accordance with the guidelines in Re F: Litigants in Person Guidelines (2001) FLC 93-072 at paragraph 253 insofar as those guidelines are relevant to such a hearing.
There is accordingly no merit to the wife’s claim of lack of procedural fairness, nor is there anything advanced by her why the third set of orders (Orders 1-16) should be set aside by reason of appealable error.
It must be remembered that the wife’s application for leave is an application to appeal against interlocutory orders.
The principles relevant to applications for leave to appeal against interlocutory orders are well-known. An applicant seeking leave to appeal must demonstrate that there has been an error of principle and/or a substantial injustice to one of the parties (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 at 177 and Rutherford & Rutherford (1991) FLC 92-255 at 78,715).
The remarks of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc and Anor are particularly apposite:
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.; on the other hand, De Mestre v. A. D. Hunter Pty. Ltd. 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.):
“… 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; Dougherty v. Chandler. It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration. (footnotes omitted)
We have determined that his Honour’s failure to give adequate reasons for the making of Order 12 of his orders of 15 February 2010 constituted appealable error. In these circumstances we will grant leave to appeal, and uphold the appeal in respect of that order. We have found the balance of the appeal to be without merit, and we will accordingly dismiss the balance of the appeal.
Costs
At the conclusion of the appeal neither party made submissions as to costs. We have, in these circumstances, provided a timetable for filing submissions in respect of costs.
I certify that the preceding one hundred and fifty six (156) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 23 April 2010
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