Bienstein v Bienstein [2003] HCA 7 13 February 2003 M140/2000
ORDER
Purported appeal struck out as incompetent.
Representation:
No appearance for the appellant
The respondent did not participate
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Bienstein v Bienstein
Practice and procedure – High Court – Removal of proceedings – Proceedings for adult child maintenance in Family Court – Whether a cause pending in a federal court – Whether matter arises under the Constitution or involves its interpretation.
Practice and procedure – High Court – Appeal from decision of a single Justice – Whether leave to appeal is required – Whether order to refuse removal of proceedings is final or interlocutory.
Courts and judges – Bias – Application for disqualification of a Justice – Whether reasonable apprehension of bias – Justice had practised professionally in city where proceedings originated – No imputed bias.
McHUGH, KIRBY AND CALLINAN JJ. This is a purported appeal from an order of Hayne J made on 1 December 2000 dismissing an application for removal of proceedings pending in the Family Court under s 40(1) of the Judiciary Act 1903 (Cth). The parties to the "appeal" are wife and husband for the purpose of the Family Law Act 1975 (Cth). They have been involved in various proceedings in the Family Court that arose out of a claim for maintenance in respect of a child of the marriage who is a disabled adult. The purported appeal is brought by the wife who claims to appeal as of right[1].
[1]This appeal from the order of Hayne J was listed for hearing in Canberra on Thursday, 2 May 2002. On 30 April 2002, at the request of Mrs Bienstein, the Court vacated the date set for the hearing of the appeal and indicated that the Court would hear the appeal on the basis of Mrs Bienstein's written submissions.
Statement of the case
Under s 40(1) of the Judiciary Act, Mrs Bienstein applied to remove into this Court proceedings pending in the Family Court on the ground that they arose under the Constitution or involved its interpretation. The Family Court proceedings that she sought to remove were:
(i)proceedings in the original jurisdiction in ML7725 of 1991;
(ii) an associated appeal in SA87 of 1999.
The application for removal was heard by Hayne J. When the hearing commenced, Mrs Bienstein asked Hayne J to disqualify himself for apprehended bias. His Honour refused to do so, and later refused to order the removal of the Family Court proceedings.
Mrs Bienstein now purports to appeal against the order dismissing her application to remove the Family Court proceedings and the order dismissing the application that Hayne J disqualify himself from hearing the removal application. In our opinion, the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Bienstein v Bienstein [2003] HCA 7
Case
[2003] HCA 7
Decision Date
CaseChat Overview and Summary
The High Court considered an application by Mrs Bienstein concerning proceedings for adult child maintenance in the Family Court. Mrs Bienstein sought the removal of these proceedings to the High Court, arguing that they involved constitutional matters. She also sought the disqualification of a Justice of the High Court on the grounds of apprehended bias.
The legal issues before the High Court were whether the Family Court proceedings constituted a cause pending in a federal court that arose under the Constitution or involved its interpretation, thereby justifying removal under section 40(1) of the Judiciary Act. Additionally, the Court had to determine whether leave to appeal was required against a single Justice's refusal to order the removal of proceedings, and whether such an order was final or interlocutory. The Court also addressed the application for disqualification of a Justice.
The High Court reasoned that the power to remove proceedings under section 40(1) of the Judiciary Act is exceptional and should only be exercised when important constitutional issues are ripe for decision, and not as a general supervisory jurisdiction. The Court found that the adult child maintenance proceedings in the Family Court did not arise under the Constitution or involve its interpretation. Therefore, the conditions for removal were not met. The Court also held that the refusal to remove proceedings was an interlocutory order, requiring leave to appeal, and that such an appeal would have no prospects of success. The application for disqualification was dismissed, with the Court finding no reasonable apprehension of bias.
The High Court ordered that the purported appeal be struck out as incompetent.
Orders
Orders of the court
Purported appeal struck out as incompetent.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HUGH, KIRBY AND CALLINAN JJ
Leave to appeal against the refusal to remove the proceedings in ML7725 of 1991 would be refused on the ground that an appeal would have no prospects of success because the conditions for an order under s 40(1) of the Judiciary Act do not exist.Conclusion There is no basis on which this Court could remove the proceedings identified by Mrs Bienstein even if the Court thought that the issues she seeks to raise would in other circumstances justify an order for removal. Orders for removal interfere with the processes of the courts hearing the proceedings sought to be removed. Only where the issues are important and require this Court's urgent decision should the Court make an order for removal. Not only do orders removing proceedings interrupt the processes of the lower courts but they deny this Court the benefit of the reasons of the lower courts on the constitutional issues and allow parties to by-pass the special leave and leave requirements of the Judiciary Act. The s 40(1) power to remove is not intended to convert this Court into a court exercising a general supervisory jurisdiction over lower courts. As Hayne J observed in the removal proceedings:"It may be readily accepted that this Court has, as one of its fundamental roles that, as final Court of Appeal for this country and in its original jurisdiction, particularly under section 75(v), of ensuring application of the rule of law, particularly in the judicial system of Australia. That is not to be done, however, as if the Court were a general judicial ombudsman. In particular, the powers under section 40(1) of the Judiciary Act are not to be exercised save for the evident purpose for which they are conferred of permitting removal into this Court of causes, or parts of causes, which raise constitutional issues ripe for decision." His Honour did not err in refusing to remove Mrs Bienstein's proceedings. If there are causes pending in matter ML7725, they do not arise under the Constitution or involve its interpretation. If Mrs Bienstein believes that there has been some error in the determination of her Family Court matters and wishes to have these rulings reviewed by this Court, the appropriate avenue is to seek special leave to appeal after the Family Court has discharged its part in respect of the cause. Given the delay that has taken place such an application would appear to have very little prospects of success even if the "error" might otherwise have attracted the grant of special leave. However, in saying this we express no concluded opinion. The issue would be decided by the Court as constituted to hear any special leave application that might be made. Order The purported appeal should be struck out as incompetent.