Border and Border (No. 2)
[2008] FamCA 582
•17 July 2008
FAMILY COURT OF AUSTRALIA
| BORDER & BORDER (NO. 2) | [2008] FamCA 582 |
| FAMILY LAW – COURTS AND JUDGES – DISQUALIFICATION |
| Family Law Act 1975 (Cth) |
| Johnson and Johnson [2000] 201 CLR 488 Ebner and the Official Trustee in Bankruptcy (2000) 205 CLR 337 Vasik & Vasik [2007] FamCA 671 EL and ML and DM [2003] FamCA 1449 |
| APPLICANT: | Mr Border |
| RESPONDENT: | Ms Border |
| FILE NUMBER: | SYF | 3823 | of | 2005 |
| DATE DELIVERED: | 17 July 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Fowler |
| HEARING DATE: | 15 July 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Maiden SC |
| COUNSEL FOR THE RESPONDENT: | Mr Richardson SC |
Orders
The husband’s Application in a Case filed 11 July 2008 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Border & Border is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 3823 of 2005
| Mr Border |
Applicant
And
| Ms Border |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application filed by the husband seeking that I disqualify myself from hearing a certain interim application listed for hearing before me this week for two days.
The matter has been fixed for hearing before me since 28 April 2008. The basis of the application was outlined by Mr Maiden as being an application for disqualification on the ground of apprehended but not actual bias.
The facts said to have given rise to the potential for apprehended bias being that Mr Maiden had, in his role as Counsel, cross-examined me in my then role as a solicitor before a Judge then of this Court about 10 years ago on an application by a then client of mine for orders by way of interim property settlement to sustain her costs of conducting the litigation.
The test for disqualification on the ground of apprehended bias has been extensively canvassed by the High Court in Johnson and Johnson [2000] 201 CLR 488.
That case is quoted together with the case of Ebner and the Official Trustee in Bankruptcy (2000) 205 CLR 337, to which Mr Richardson refers by her Honour Justice Carter in a judgment delivered by her in 2007 in a matter of Vasik & Vasik [2007] FamCA 671 and I refer to her Honour’s decision which is both succinct and persuasive.
Her Honour in that case says:
‘8.The principles which relate to disqualifications have been authoritatively discussed in the case of Johnson v Johnson (2000) 201 CLR 458. In that case, the Chief Justice and Gaudron, McHugh, Gummow and Hayne JJ discussed the grounds upon which a judge should accede to a disqualification application commencing at par 10. At par 11, their Honours said:
“… the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”
9.At par 12, their Honours went on to say:
“… 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 him or her to discard the irrelevant, the immaterial and the prejudicial’.”
10.Thereafter, their Honours said at par 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 …”
11.In Johnson, Callinan J referred, with obvious agreement, to the judgment of Mason J (as he then was) in Re JRL; Ex parte CJL (1986) 161 CLR 342. Mason J had said at 352:
“It needs to be said loudly and clearly that the ground for 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 provided an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.” [emphasis added]
12.Later, and having referred to a number of authorities, his Honour said:
“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 a disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”
13.In Johnson, Kirby J referred to his latter statement as a salutary warning say [sic] that it warned judicial offers [sic] in Australia:
“… not to accede too readily to suggestions of an appearance of bias, lest parties be encouraged to seek such disqualification without justification. Applications of that kind might sometimes be made in the hope in securing an adjudicator more sympathetic to a party’s cause. Or they might be made because of the strategic advantage that may thereby be secured, especially the interruption of lengthy proceedings and the delays consequent upon obtaining a fresh start in a busy court or tribunal.” (Footnotes omitted.)
14.In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the Gleeson CJ and McHugh, Gummow and Hayne JJ had this to say:
“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 judge. If one party to a case objects to a particular judge sitting, or to 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.”
15.I have already referred to the fictional observer in the sense used by the High Court in Johnson. In the same case, whilst stating that the attributes of the fictitious bystander have been variously stated, Kirby J said at par 53:
“… Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. … The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper of remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.” (Citations omitted.)
16.At par 80 of Johnson, Callinan J noted it was important to keep in mind:
“… that the notional, fair-minded observer is a rational person, not unacquainted with the legal process, the oath or affirmation that Judges have taken and judicial obligations generally, and in broad terms what has occurred and may occur in a case before and after the challenged conduct.”’
I informed the Court that as a post scriptum to the case referred to by Mr Maiden and indeed subsequent to its being dealt with by the Court, Mr Maiden appeared under instructions from solicitors retained by me and with my approval in two cases in which I was the plaintiff.
In respect of one of those cases which had been commenced in the District Court of New South Wales, Mr Maiden also appeared in an application in this Court in which I was the respondent and successfully opposed an application for leave to tax a bill of costs out of time.
The relationship between Mr Maiden and I has always been professional.
In the decision of EL and ML and DM [2003] FamCA 1449, His Honour Justice Guest says:
“20.Indeed, it should be said clearly that the fact a party has a subjective apprehension of bias is not of itself sufficient to warrant or require disqualification of a judge. I refer to what Mason J had to say in Re JRL; ex parte CJL (1986) 161 CLR 342 at page 352. Disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment which must be “firmly established” …”
and later:
“25.One must look at the realities of everyday practice in court and the due administration of justice, balancing of course the integrity of the legal process. This must be observed “in the real world of actual litigation”, (per Brennan, Deane and Gaudron JJ in Vakauta v Kelly (1989) 167 CLR 568 at page 570), and procedural dispositions “governed by the reality of the situation”, …”
Mr Richardson raised for my consideration authorities which refer to the necessity to bring an application for disqualification promptly and that delay in bringing such an application may prove fatal to it. In this case, Mr Maiden conceded that he had informed his client of his involvement in the earlier case in May 2008 and it was not until the last few days that the application had been brought. There clearly has been a delay in bringing this matter to the Court only two days prior to the date on which it was listed for interim hearing before me. However, in the circumstances I find that I do not have to consider the implications of the delay in this matter since it clearly is otherwise a case in which the applicant has failed to make out a case.
Mr Maiden submitted that this was not a case in which there was any actual bias but a reasonable apprehension of it. I do not find in all the circumstances that a reasonable and informed observer would apprehend any bias in the disposition of these proceedings by reason of the matters raised, and accordingly the application is dismissed.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.
Associate:
Date: 17 July 2008
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