CHARISTEAS and CHARISTEAS
[2016] FCWA 106
•14 NOVEMBER 2016
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: CHARISTEAS and CHARISTEAS [2016] FCWA 106
CORAM: WALTERS J
HEARD: 13 SEPTEMBER 2016
DELIVERED : Ex tempore (but settled reasons delivered on 14 NOVEMBER 2016)
FILE NO/S: PTW 4624 of 2006
BETWEEN: MRS CHARISTEAS
Applicant
AND
MR CHARISTEAS
First RespondentAND
LEWIS BARTON AND ANGELINA CHARISTEAS (As Executors of the Estate of J CHARISTEAS)
Second RespondentsAND
XYZ PTY LTD
Third RespondentAND
LEWIS BARTON
Fourth RespondentAND
ANGELINA CHARISTEAS
Fifth RespondentAND
E CHARISTEAS
Sixth RespondentAND
MS SOLANO
Seventh RespondentAND
MS MAGNOLI
Eighth Respondent
Catchwords:
FAMILY LAW – Practice and procedure – Application for judge to be disqualified for apprehended bias – Waiver – Application of principles in Vakauta v Kelly (1989) 167 CLR 568 – Delay in making application for disqualification of judge for apprehended bias – Where application received extremely late and with minimal warning – Where submissions fail to differentiate between question of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question or questions the judge is required to decide (on the one hand) and reasonable apprehension that the judge will decide the case adversely to a party (on the other) – Where no nexus demonstrated between the matters relied on as indicators of bias or pre-judgment (on the one hand) and the resolution of the question or questions the judge is required to decide (on the other) – Where thrust of application appears to be apprehension that judicial officer will decide the case adversely to one party
Legislation:
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Category: Not Reportable
Representation:
Counsel:
Applicant : Ms G. Anderson
First Respondent : Mr P. Dowding SC
Second Respondents : Mr S. Penglis
Third Respondent : Mr S. Penglis
Fourth Respondent : Mr S. Penglis
Fifth Respondent : Mr S. Penglis
Sixth Respondent : Self Represented Litigant
Seventh Respondent : Self Represented Litigant
Eighth Respondent : Self Represented Litigant
Solicitors:
Applicant : DCH Legal Group
First Respondent : Slater Gordon
Second Respondents : West End Legal
Third Respondent : West End Legal
Fourth Respondent : West End Legal
Fifth Respondent : West End Legal
Sixth Respondent : Self Represented Litigant
Seventh Respondent : Self Represented Litigant
Eighth Respondent : Self Represented Litigant
Case(s) referred to in judgment(s):
AG and Ors & VC and Anor [2013] FamCAFC 60
Anderson v National Australia Bank [2007] VSCA 172
Batey-Elton & Elton [2010] FamCAFC 79
Budd v Kambah Tea Tree Plantations Pty Ltd [2001] NSWCA 180
Byron v Southern Star Group Pty Ltd t/a KGC Magnetic Tapes (1995) 13 ACLC 301
Charisteas & Charisteas [2011] FCWA 89
Charisteas & Charisteas [2012] FCWA 1
Charisteas & Charisteas [2015] FCWA 15
Crossman v Sheahan [2016] NSWCA 200
DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Giannarelli v Wraith (1988) 165 CLR 543
Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100; 67 ER 313
Hoystead v Comr of Taxation [1926] AC 155
Johnson v Johnson (2000) 201 CLR 488
Kyriakos & Kyriakos (2013) FLC 93-528
Laue & Laue (Dec.) [2016] FCWA 91
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Owens & Owens (No 2) [2010] FMCAfam 2
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re JRL: Ex Parte CJL (1986) 161 CLR 342
Re the will of FB Gilbert (Dec.) (1946) 46 SR (NSW) 318
Strahan & Strahan (Disqualification) (2009) FLC 93-414
Vakauta v Kelly (1989) 167 CLR 568
VC & GC and Ors [2010] FamCAFC 62
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Preamble
1On 13 September 2016, the Court heard and dismissed a recusal application. It also made orders in relation to various interlocutory matters. The orders made on that day are the subject of an appeal and an application for leave to appeal to the Full Court of the Family Court of Australia.
2The parties to the proceedings on 13 September 2016 ("the September 2016 hearing") were the wife, the husband, [Mr Lewis Barton] and [Ms Angelina Charisteas] (as executors of the estate of the late [J Charisteas]), [XYZ Pty Ltd], Mr Barton, Ms Angelina Charisteas and the adult children of the wife and the husband (being the grandchildren of Ms Angelina Charisteas – [Mr E Charisteas], [Ms Solano] and [Ms Magnoli]).
3This matter has a long, complex and unfortunate history. There have been trials and appeals, but the intensity of the dispute has not abated. Instead of endeavouring to summarise the proceedings, it is sufficient for current purposes if I refer to the description of the litigation and the historical material appearing in –
a)the Full Court's decisions in VC & GC and Ors [2010] FamCAFC 62 and AG and Ors & VC and Anor [2013] FamCAFC 60;
b) Justice Crisford's decision in Charisteas & Charisteas [2012] FCWA 1; and
c) my decision in Charisteas & Charisteas [2015] FCWA 15.
4The adult children of the husband and the wife became parties to the proceedings relatively recently. They comprise the sixth, seventh and eighth respondents ("the adult children").
5For ease of reference, I shall refer to the second, third, fourth and fifth respondents (who were all represented by the same solicitors and counsel) as "the additional parties".
6The trial ran before me for a total of 11 days in August 2016 ("the August 2016 trial"). The evidence phase of the August 2016 trial ended on 17 August 2016, at which time directions were made for the parties to file closing submissions in writing within a comparatively limited time frame. The proceedings were otherwise adjourned to 13 September 2016 to enable final (oral) submissions to be made.
7The September 2016 hearing was, therefore, the final step in an extraordinarily protracted trial process – which had begun before Justice Crisford on 17 January 2008. All relevant evidence had been presented by all parties, and all parties who wished to do so had filed written closing submissions (the adult children, and the additional parties, on 24 August 2016, the husband on 31 August 2016 and the wife on 7 September 2016).
8As was observed in the husband's closing submissions at [6], these proceedings "have involved a decade of litigation". I have been the judicial officer managing that litigation for the last two and a half years or so.
9Further written submissions were provided to the Court immediately prior to or at the commencement of the September 2016 hearing. Relevantly, the additional parties supplied a document headed "Outline of Submissions in response to wife's written closing submissions" (comprising 14 pages) and the husband supplied a document headed "Written responsive closing submissions of the first respondent" (also comprising 14 pages).
10One of the purposes of the September 2016 hearing was to enable the parties to be heard in relation to the making of interim or interlocutory orders pending the delivery of judgment. All parties accepted that it would be likely to take up to 12 months for the judgment to be delivered.
11On 9 September 2016 – in other words, just over three weeks after the 11 days of the August 2016 trial concluded on 17 August 2016, and some two working days before the September 2016 hearing – the additional parties filed an application in a case seeking that I recuse myself "from further hearing these proceedings" and that the proceedings "be listed before a different judge of the Family Court of Western Australia for directions" ("the recusal application"). The recusal application was supported by an affidavit sworn on 9 September 2016 by the additional parties' solicitor, Mr Elder. Annexed to Mr Elder's affidavit are various pages from the transcript of the August 2016 trial.
12The additional parties also filed an outline of submissions in support of the recusal application. The outline of submissions was filed together with the recusal application (on 9 September 2016). I shall refer to these submissions as "the recusal submissions".
13Mr Penglis appeared for the additional parties at the September 2016 hearing. He relied on the recusal submissions in support of the recusal application, and made no attempt to supplement them with oral argument: see 13 September 2016 transcript at 13-14. Mr Dowding SC, who appeared for the husband at the September 2016 hearing, indicated that his instructions were to support the recusal application –although he made no independent submissions: see 13 September 2016 transcript at 14.
14Ms Anderson, for the wife, opposed the recusal application – as did the adult children.
15Having regard to the substantive issues to be dealt with at the September 2016 hearing, I indicated that the recusal application would be dismissed and that I would provide reasons in due course. I foreshadowed that, broadly speaking, those reasons were twofold:
a)There had been, in my view, and in the circumstances of the complex proceedings before the Court, "an inappropriate and unexplained delay which … is unconscionable in relation to an application for recusal". I added that the recusal application had been "made far too late in the context of the current proceedings".
b)Even if the recusal application had not been made too late in the context of the current proceedings, it is without merit. In this regard, I said that the legal principles (some of which had been discussed in the recusal submissions) include the following comments from the decision of Mason J in Re JRL: Ex Parte CJL (1986) 161 CLR 342 ("Re JRL") at 352 (references omitted):
… 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.
I pause at this stage to observe that, since Mason J made those comments, the test has changed to what can be described as the "double might" test (see below). In any event, his Honour continued:
… 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… 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.
16In dismissing the recusal application, I concluded by saying that:
In my view, the general thrust of [the recusal submissions] is that certain parties are concerned that this Court might make a decision with which they are uncomfortable – as opposed to the concerns reflected in the legal principles associated with applications of this nature.
17These are my reasons for dismissing the recusal application. I am not limited by the brief comments I made at the September 2016 hearing, given that I indicated I would give my reasons in due course and that the comments made at the time were intended to be no more than a superficial overview of those reasons: see, for example, Kyriakos & Kyriakos (2013) FLC 93-528 at [59] (per Finn and Strickland JJ – although I note the strong dissenting judgment of Forrest J).
Recusal – The Law
Apprehension of bias
18The recusal application was "based on reasonable apprehension of bias": see recusal submissions at [2].
19According to the recusal submissions, the "relevant legal principles" were recently summarised by the New South Wales Court of Appeal in Crossman v Sheahan [2016] NSWCA 200. Relevantly, Basten JA said (some footnotes and references omitted):
21.The test for disqualification on the basis of a reasonable apprehension of bias is not entirely easy to apply. It contains three discrete elements, which are interrelated. Thus, in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ stated:
6.… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. ...
8.The apprehension of bias principle admits of the possibility of human frailty.... Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. ... Only then can the reasonableness of the asserted apprehension of bias be assessed.
22.The three elements are (a) what the fair-minded observer might apprehend, (b) whether the judge might not be impartial and (c) the reasonableness of the apprehension. The third element, dealing with the reasonableness of the apprehension, requires a "logical connection" between the matter relied on as an indicator of pre-judgment and the feared deviation from impartial determination of the case before the court. It imposes a constraint on what might otherwise be a low (in the sense of undemanding) standard for disqualification. On one view, the third element requires a degree of clear thinking on the part of the hypothetical "fair minded lay observer"; on another view, the logical connection must be established to the satisfaction of the reviewing court, or the judge dealing with a recusal application. That is, on the latter view the test involves an objective assessment of the reasonableness of the apprehension, rather than determining whether the fair-minded lay observer "might" perceive a logical connection.
23.It is the latter approach which the High Court undertook in Michael Wilson & Partners Ltd v Nicholls(2011) 244 CLR 427 …
24.…
25.In order to consider whether there is a logical connection between the opinion said to give rise to prejudgment and the proceedings to be determined, it is necessary to identify the issues in the proceedings. That exercise is not necessarily straightforward. Where the question is raised before the commencement of the proceedings, it would usually be appropriate to have regard to the pleadings in a civil matter. However, the issues in dispute may be refined (or even expanded) in the course of proceedings. It would be inappropriate to take a narrow or over-refined view of the issues as pleaded.
20Many other cases deal with applications for recusal on the basis of apprehended bias and the test that should be applied. In my opinion, one of the most helpful authorities (in this jurisdiction) is the decision of the Full Court in Batey-Elton & Elton [2010] FamCAFC 79 ("Batey-Elton").
21Commencing at [61], the Full Court in Batey-Elton quoted the applicable principles as formulated by the High Court in Johnson v Johnson (2000) 201 CLR 488 ("Johnson") and Ebnerv Official Trustee in Bankruptcy (2000) 205 CLR 337 ("Ebner"). The passages are lengthy, but it is helpful to reproduce them (with footnotes omitted):
61.The principles which apply in respect of disqualification for actual or apprehended bias are clearly explained in two decisions of the High Court – Johnson and Ebner. 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 (1989) 167 CLR 568, 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)
62.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)
63.In Strahan & Strahan (Disqualification) (2009) FLC 93-414 ("Strahan") 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.
22The Full Court in Strahan went on, at [6], to refer to the passage to which I have already referred from Mason J's decision in Re JRL at 352.
23As explained in Ebner and Strahan, the Court must take certain steps in considering an application of this nature:
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.
24I reiterate that the test for apprehended 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. "The question the judge is required to decide", therefore, becomes an important matter.
25As submitted in the recusal submissions at [5] to [7], further considerations are also relevant. For example:
a) the fair minded lay observer –
i)is reasonable;
ii)is not unduly sensitive or suspicious, but fair-minded and informed;
iii)is willing and able to consider "the whole circumstances"; and
iv)understands that a judicial officer's training equips him or her to discard irrelevancies;
b)the test for apprehended bias is an objective test of possibility (as distinct from probability), but the possibility must be real and not remote;
c)the judicial officer should avoid any tendency to be over-ready to disqualify himself or herself from presiding over an appointed trial; and
d)the case for disqualification must be "firmly established".
Delay
26As described above, the recusal application was received, without warning, immediately before the September 2016 hearing – well after the conclusion of the trial, and after all parties had filed their written submissions. The husband did not join in it until after the September 2016 hearing had commenced.
27In my opinion, counsel for the additional parties and for the husband were not entitled to "stand by" during the whole of the evidence phase of the trial (which was extremely lengthy) without asking the judicial officer to refrain from continuing to hear the matter and thereby giving him the opportunity to correct any wrong impression of bias that may have been given or, alternatively, to disqualify himself at an early stage: see, for example, Vakauta v Kelly (1989) 167 CLR 568 at 57 ("Vakauta"). The delay in making the recusal application was unexplained and, in my view, it was unconscionable. The delay is so great that it interferes with the proper administration of justice. It means that the disposal of this case (which has continued for the best part of a decade) would be deferred – perhaps for years (if the history of the litigation is any guide to its future conduct). It also means that all parties would be required to incur additional costs which, without exaggeration, are likely to be enormous. After all, these proceedings are characterised by one or more litigants with both a long purse and a litigious disposition (to paraphrase the well-known comment of Jordan CJ in Re the will of FB Gilbert (Dec.) (1946) 46 SR (NSW) 318 at 323).
28I accept that a balance must be struck between safeguarding the demands of justice and recognising the need to bring litigation to an end. The demands of justice require, however, that the interests of parties whose hearings are "likely to be displaced or delayed by the case before the court" (or, indeed, by the rehearing of cases) should also be weighed in the balance: see, for example, Byron v Southern Star Group Pty Ltdt/a KGC Magnetic Tapes (1995) 13 ACLC 301 at 302. Put shortly, the Court's resources are far from infinite, and a trial judge should be loathe to condone the making of an application of this nature at the metaphorical 11th hour, 59th minute and 59th second. Indeed, in this case the application was made after the trial had concluded for all practical purposes.
29Without wishing to press the analogy too far, it is fair to say that the additional parties' decision to leave the making of the recusal application to the final moments of the trial brings into play considerations which are not dissimilar to those which adhere in Anshun estoppel: see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. The effect of this form of estoppel was described by the Court of Appeal (WA) in DP World Australia Ltdv Fremantle Port Authority [2009] WASCA 16 at [73]:
[Anshun estoppel] rests upon the principle that the court requires parties to litigation to bring forward their whole case and will not permit a party to reserve a claim and make it later when it could and should have been made in the earlier proceedings. It stems from the well-known statement of Wigram VC in Henderson v Henderson[1843] EngR 917; (1843) 3 Hare 100; 67 ER 313 at 319:
… where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted parts of their case.
30Clearly, the making of the recusal application does not equate to raising in subsequent proceedings matters which could and should have been raised and litigated in earlier proceedings, and the doctrine of issue estoppel does not operate in any relevant sense, but comments such as those made by Lord Shaw in Hoystead v Comr of Taxation [1926] AC 155 (Privy Council) at 165-166 are nevertheless apposite (at least by analogy):
… Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted… [The same] principle – namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties' rights to rest applies and estoppel occurs.
31Thus, the fact that the additional parties may have elected to "keep their powder dry" during the hearing, or may have elected to continue with the trial to see how it might turn out from their point of view, does not mean that they should be permitted to press the recusal application at this late stage. Lord Shaw's comments sit comfortably with the principles discussed by the High Court in Vakauta. In my opinion, litigants should be able to demonstrate that they have an adequate reason for failing to make a recusal application as early as practicable in the proceedings before the judicial officer whose behaviour gives rise to concern. The additional parties have provided no such adequate reason.
Discussion
32In all the circumstances, I find that waiver has taken place, and that the recusal application should be dismissed for that reason alone: see Vakauta. But if I am wrong in relation to waiver, I remain of the view (for the reasons set out below) that the recusal application is without merit.
Recusal submissions at [9] and [10]
33The first of the matters raised in support of the recusal application relates to an exchange which occurred on the second day of the 11 day trial (4 August 2016), at transcript p 33. It relates to comments I made regarding [the C properties]. Justice Crisford found the C properties [were] an asset of the [XYZ Trust] ("the Trust"): see Charisteas & Charisteas [2011] FCWA 89 ("the 2011 judgment") at [132]. The trustee of the XYZ Trust is [XYZ Pty Ltd] ("[XYZ]").
34In the 2011 judgment, Justice Crisford dealt with the acquisition of the C properties and the fact that the husband and the wife guaranteed a loan by XYZ to acquire it. The subject is also dealt with in the summary of historical material referred to in my judgment in Charisteas & Charisteas [2015] FCWA 15 ("the 2015 judgment") at [20].
35In August 2010, Justice Crisford made orders restraining XYZ from disposing of assets of the Trust without giving 28 days prior notice to the wife ("the August 2010 injunction"). In April 2013, and almost contemporaneously with the Full Court delivering its reasons for judgment in relation to the appeal from the 2011 judgment (see AG and Ors & VC and Anor [2013] FamCAFC 60 – "the 2013 appeal judgment"), XYZ signed an unconditional contract to sell the C properties for $3.5 million. Prima facie, this transaction was in breach of the August 2010 injunction.
36Following the sale of the C properties, XYZ took steps to distribute the entirety of the net proceeds of sale – largely to the husband's mother.
37The timing of the sale of the C properties and the decision to distribute the net proceeds of sale to the husband's mother (the combined effect of which was to remove the C properties as an asset of the Trust) was raised by the wife in the affidavit material upon which the wife relied at trial and in her papers for the judge filed 26 July 2016. According to the wife's papers for the judge, one of the issues for determination in the trial was whether the property of the Trust belongs to the husband and the wife. The timing of the sale of the C properties, the effect of the August 2010 injunction and the treatment of the net proceeds of sale were all explored in detail during the trial. Having heard all the evidence (and, indeed, the parties' closing submissions) I remain of the view that the wife had every reason to be concerned about all those issues.
Recusal submissions at [11]
38I do not understand the issue raised in the recusal submissions at [11]. I was obliged to make dozens of rulings during the course of the lengthy and bitterly fought trial. From time to time I upheld submissions of each of the parties. Similarly, from time to time, I rejected a party's submissions. The rulings reflected my understanding of the nature of the dispute before the Court and were designed to ensure that the case was managed as effectively (and fairly) as possible.
Recusal submissions at [12] and [13]
39I reject the submissions at [12] and [13] of the recusal submissions. The husband commenced giving oral evidence on the fifth day of the trial (9 August 2016) at approximately 3.30 p.m. He was in the witness box for approximately 45 minutes on that day. He was cross-examined throughout the sixth day of the trial (10 August 2016). He was also cross-examined for an extended period on the seventh and eighth days of the trial (11 and 12 August 2016). He was a most unimpressive witness. The unsatisfactory nature of his evidence and his smug and hubristic demeanour were apparent from a very early stage in his cross-examination.
40The comments I made were in the context of bitterly contested proceedings which had continued for the best part of a decade, and which I had managed for some two and a half years. As was the case in a similarly long-running and bitterly contested set of proceedings conducted before me in the recent past, the parties in this case adopted fundamentally different approaches to the conduct of the dispute in this Court. The husband and the additional parties sought to "establish facts from the balance sheets from various entities and to rely on the corporate veil, ignoring the specific way in which members of this family treated the corporate entities and their assets" (to use the words in the closing address of senior counsel for the wife in the other set of proceedings – who, as it happens, was the husband's senior counsel in the current proceedings). The wife in the current proceedings sought to establish that the Trust is the husband's alter ego and that the property of the Trust is the property of the husband and the wife. In this regard, she pointed to (among other things) the history of the acquisition of the Trust's property, its structure and the lack of effective control of the Trust by the husband's mother and Mr Barton. She submitted, in effect, that deliberate steps were taken with a view to creating the appearance of the Trust being controlled by persons other than the husband and of the husband having no executive role within its structure. I summarised this type of argument in the judgment I delivered in the other long-running case to which I have referred (see Laue & Laue (Dec.) [2016] FCWA 91):
To a very real extent, the rigid and overly formal approach adopted by (the independently represented entities alleged to be under the control of a significant family member) seemed out of place in these proceedings, which comprise the quintessence of a family (and family law) dispute. The corporate entities and trusts to which reference has been made were, by and large, no more than a means to an end. To suggest that they or some of them had a consciousness or volition separate from the consciousness or volition of the people wholly in control of them – at least for current purposes – is irrational. It is the legal equivalent of the tail wagging the dog.
41I accept, of course, that there are differences between the case to which I have referred and the current proceedings. The remarks set out above are by way of analogy only. Still, they are helpful in that they highlight the parties' contrasting approaches to the litigation. It is a scenario often encountered in more complex property proceedings in this Court and the Family Law Courts.
42The circumstances surrounding the sale of the C properties, its timing and the treatment of the proceeds of sale were important issues from the wife's point of view. On 5 August 2010, Justice Crisford had granted the August 2010 injunction in the following terms:
The third, fourth and fifth respondents be restrained by injunction until further order from:
…
c)voting in favour of any resolution to pay, apply or set aside income or capital or otherwise any portion of the Trust Fund to any beneficiary of [the Trust] or otherwise causing or permitting any such payment, application or setting aside of income or capital or otherwise any portion of the Trust Fund whether by way of resolution or otherwise without first providing not less than 28 days written notice to the wife of the proposed resolution, payment, application or setting aside; …
43The C properties [were] sold almost contemporaneously with or immediately before the Full Court handed down its decision on the appeal from Justice Crisford's trial judgment on 11 April 2013. I do not propose to revisit the Full Court's decision or the orders made as a result thereof. Suffice it to say that the directors of XYZ as trustee of the Trust took the view that they were no longer subject to the August 2010 injunction – which they then proceeded to ignore. The wife was given no or no adequate notice of the sale of the C properties, and no or no adequate notice of the distribution of the proceeds of sale to the husband's mother.
44In her closing submissions filed 7 September 2016 at [84], the wife asserted as follows:
•… a prudent Trustee would have sought directions from the Court prior to taking a substantial step to deal with an asset [[the C properties]] which the wife had claimed for many years prior belonged to the husband and the wife;
•assistance from the Court was specifically required because although the Full Court set aside the orders providing for a vesting of the Trust, it was also held that Justice Crisford's finding that the entitlement [of] each of the spouses was property for the purposes of the proceedings for property settlement was "undoubtedly correct";
•at a bare minimum the wife should have been informed of the intended sale irrespective of whether orders required such notice;
•the distribution of the proceeds of sale to a beneficiary was in breach of the 5 August 2010 orders, which the wife submits had full force and effect having not been discharged by further order …
45Well after the making of the comments referred to in the recusal submissions at [12] and [13] (which I shall refer to as the "probably do" comments), I made the observation that the view taken by those controlling the Trust to the effect that the August 2010 injunction was no longer in effect (and to thereupon take steps which they knew had been clearly prohibited by that injunction) was "a big call". I do not resile from that description.
46The "probably do" comments were made after the husband had been cross-examined for approximately 40 minutes on 9 August 2016 and throughout the entire morning of 10 August 2016. Immediately after the luncheon adjournment, Ms Anderson commenced cross-examining the husband about the sale of the C properties. The husband said that he was "the selling agent" for the C properties, and that he had the Trust's authority to act in that capacity. He said that, when an unsolicited offer to purchase the C properties was received, he "presented it" to his mother and Mr Barton. He also said that there "would have been emails" between himself and Mr Barton in relation to the offer, but that he did not disclose such emails at the time. He also said that he prepared a document which was annexed to the offer to purchase the C properties. The document was in the following terms (see annexure A-1 to Exhibit W12) ("the approval conditions"):
Seller and Purchaser hereby agree: –
1.This contract of sale is subject to the Family Court approving the sale on or before 30 June 2013 – if required.
2.The due diligence… shall commence… either 30 days after Family Court approval (if required) or upon 7 days after Seller notifies Purchaser in writing that Family Court approval is not required.
47Shortly before the "probably do" comments were made, the following exchange occurred between cross-examining counsel and the husband (see 10 August 2016 transcript at 58]:
Ms Anderson: Were you aware at the time [of the preparation of the approval conditions] of the orders of 5 August 2010 in relation to certain restraints on what the Trust could do?
The husband: Well, that's why the annexure A-1 is in with number 1.
Ms Anderson: And was it your understanding then that the orders meant that the Trust could not sell [[the C properties]]?
The husband: No, I didn't really consider that. I just put it in for them to approve and consider.
Ms Anderson: Why did you put it in?
The husband: Because the whole thing is subject to the Family Court, is my understanding so…
Ms Anderson: But you said, "subject to the Family Court approving the sale".
The husband: Yes.
Ms Anderson: Why did [you] say "the Family Court approving the sale"?
The husband: Well, I understand that there is an injunction on [the Trust] to deal with property.
Ms Anderson: Yes. So your understanding was that [the Trust] couldn't sell its property without the approval of the Family Court?
The husband: No, I believe that they can sell a property and do certain things. They have to notify and have acceptance from my wife.
Ms Anderson: Including sale, that was your understanding?
The husband: Well, that's my understanding, yes.
Ms Anderson: Yes. And did you have a discussion with the trustees of [the Trust] about that particular clause?
The husband: No.
Ms Anderson: Did they say to you that… they would have to give notice to [the wife]?
The husband: Look, I don't know. There would have been – there has been discussions with the issue, it's an ongoing issue, I'm aware of what the requirements are, and that's why it's in there.
48A few minutes later, the husband gave confusing and unconvincing evidence regarding when or if he advised the purchasers that para 1 of the approval conditions had been met. He then said (see 10 August 2016 transcript at 61-2):
… [The] contract accepted by all parties is subject to [the approval conditions], so even if all parties have accepted, if something happens in relation to [paras 1 or 2 of the approval conditions], then this contract will not proceed, whether it is accepted or not.
49Bearing in mind the husband's understanding of the requirements for the wife to be given notice of transactions such as the sale of the C properties, counsel for the wife continued to press the husband regarding the failure to provide the wife with such notice (see 10 August 2016 transcript at 63):
Ms Anderson: … [Was] there any written communication between [the husband and/or the vendor of [the C properties] and/or the purchaser of [the C properties]] that [the approval conditions] had been waived or fulfilled?
The husband: Yes, there would have been.
Ms Anderson: Have you disclosed the documents in relation to this contract in relation to [the approval conditions]?
The husband: The waiver or the satisfaction, no I haven't.
Ms Anderson: Why not?
The husband: Well, I'm sorry I didn't think it was necessary.
…
Ms Anderson: Did you take steps as the agent for the Trust and as a party to these proceedings to ensure that that information was conveyed to your former wife or her solicitors?
The husband: No. That's the Trust – that's the vendor's obligation.
Ms Anderson: But you are, in fact, wearing two hats in this transaction… One is that you are the consultant for the Trust and the other one is that you are the selling agent for the Trust.
The husband: Well, I don't believe that I've been injuncted or required to do anything in relation to [the Trust] properties by anyone.…
Ms Anderson: … I'm saying to you that… you were in possession of documents… relating to this transaction…
The husband: Yes.
Ms Anderson: … and I'm suggesting to you that you had an obligation to disclose what was going on.
The husband: I'm suggesting I don't have that obligation.
50It was immediately after this exchange that I made the "probably do" comments. Given that the transcript includes references to "indistinct" words, I have reproduced the "probably do" comments from the audio record of the proceedings:
Walters J: I'm suggesting you probably do.
The husband: Okay.
Walters J: You're not allowed to aid and abet the breach of an order.
The husband: I'm sorry, your Honour, it's not a question of trying to aid and abet.
51Senior counsel for the husband then complained about the comment I had made (see 10 August 2016 transcript at 64). I responded as follows:
If [the husband's] understanding is that the order has the effect that he says that it has – and that's another story, but he said that was his understanding – then he can't just step back and allow what he perceives to be a breach occurring while doing nothing.
52The exchange with senior counsel for the husband continued after the above response: see 10 August 2016 transcript at 64-5 (although the transcribed words "right in all" on p 65 at lines 34 and 40 should read "right at all").
53It follows from the above that the "probably do" comments did not occur in a vacuum, and that they have not been put in context in the recusal submissions. Nothing that occurred at that time could properly satisfy the relevant test relating to apprehended bias. Whatever a fair-minded lay observer might have reasonably apprehended after hearing the evidence to which I have referred above, he or she could not possibly have reasonably apprehended that the presiding judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question he was required to decide.
54The recusal submissions suggest that the "probably do" comments were "capable of unnerving the witness in the further giving of his evidence". I reject that submission. The fact of the matter is that the husband was far from unnerved at any time during his evidence. Indeed, his demeanour during the extensive cross-examination which followed the "probably do" comments was no different from his demeanour beforehand: he was confident to the point of being supercilious, and rarely made any attempt to disguise his attitude of condescension towards the wife. I am satisfied that he is a shrewd businessman, who was nimble in his attempts to pre-empt and avoid questions which he perceived might harm his case. He was not a credible witness. I am more than satisfied that he was capable of the type of chicanery attributed to him by the wife and his children. I am well able to make these comments because the trial has concluded, and I shall expand upon them when I deliver my judgment in relation to the substantive issues.
Recusal submissions at [14]
55I do not propose to deal with the matter referred to in the recusal submissions at [14]. It is difficult to see how this matter assists the additional parties’ argument. It certainly does not fall within any of the criteria relevant in determining whether apprehended bias has been made out.
Recusal submissions at [15]
56The same can be said for the matter referred to in the recusal submissions at [15]. I have absolutely no doubt that the husband's mother had no real understanding of many of the matters set out in her affidavit. That was abundantly clear to me from her evidence (which was given through an interpreter on the seventh day of the trial, 11 August 2016). I do not resile from any of the comments I made regarding the evidence of [Mrs Charisteas Snr], including the comments I made regarding the propriety and manner of the preparation of her affidavit. The subject was revisited on 13 September 2016, on what was, in effect, the final day of the trial. Mr Donaldson of senior counsel sought and was granted the Court's leave to make submissions on behalf of the solicitor for the additional parties "arising out of" the observations I made on 11 August 2016: see 13 September 2016 transcript at 5-13.
57The transcript of the exchange between Mr Donaldson and the Court on 13 September 2016 speaks for itself. Among other things, the suggestion was made that Mrs Charisteas Snr's recollection and comprehension skills may have deteriorated since she swore her primary affidavit some five years earlier. I reiterate, however, the following comments which I made on that day:
[The] person who called [[Mrs Charisteas Snr]] had every opportunity to ask her to affirm her affidavit to obtain evidence from her that perhaps her recollection had deteriorated over the years. Nothing was done in that regard. …
This is now the 11th hour, 59th minute and 59th second of the trial. The evidence is finished.… Closing addresses have been presented in writing and I am here to tidy up some loose ends as far as I can see.…
… [These] parties have had the best legal advice money can buy. A king's ransom has been spent on legal fees. Decisions have been made. No attempt was made to lead evidence regarding any change in her mental capacity over the past five years …
58Mrs Charisteas Snr is an elderly woman. Her English is poor. To put it as gently as possible, she is an unsophisticated person, with only the most rudimentary understanding of business or financial matters. I am satisfied that she had no genuine understanding of the comparatively complex financial matters dealt with in her affidavit and the commercial documents attached to it. There was simply no credible evidence before me that her understanding of those matters was or could possibly have been any better when she swore her affidavit. That is not to say, of course, that she could not have given instructions regarding "family" matters, such as her background, her relationship with her late husband and their efforts over the years to improve their financial position and support their children. I accept that she did give instructions in relation to such matters, to the extent that she was able to do so. But I have no hesitation in finding that a significant proportion of the matters deposed to in her affidavit (relevantly, those areas of the affidavit dealing with financial and commercial matters) could not have been sourced in her instructions. To put it bluntly, much of the affidavit was constructed by others and did not properly comprise evidence she was capable of giving. I do not know from whom the instructions relating to the financial and commercial matters contained in the affidavit came, but they did not come from Mrs Charisteas Snr. If the legal practitioner who caused the affidavit to be sworn and filed in these proceedings was aware of that fact, then such actions comprise (at the very least) a serious neglect of that practitioner's professional obligations and duties as an officer of the court.
59Much was made (or attempted to be made) of Mrs Charisteas Snr's anxiousness at the commencement of her evidence and alleged problems regarding the interpreter. I have not ignored those factors. The fact of the matter is, however, that Mrs Charisteas Snr soon settled into giving her evidence and the interpreter assured the Court (after some initial problems) that she and the witness could understand each other without difficulty. I find that these factors had absolutely nothing to do with Mrs Charisteas Snr's lack of knowledge and lack of understanding of the financial and commercial matters set out in her affidavit.
Recusal submissions at [16]
60Regrettably, the preamble to the comments referred to in this paragraph, and the context in which they were made, have been omitted from the submissions. The husband was being cross-examined – on the seventh day of the trial – about liabilities that should have been "vouched" (to use the practitioners' term) prior to the commencement of the trial. If the husband asserted that he owed certain liabilities, and the wife did not concede the accuracy of that assertion, then the husband was obliged to "vouch" the existence of the liability at an early stage. As is clear from the Family Law Rules 2004 (Cth) ("the Rules"), the Court is required to ensure that each case is resolved in a just and timely manner at a cost to the parties (and the Court) that is reasonable in the circumstances. Among other things, the parties were obliged to identify the issues in dispute at an early stage and endeavour to dispose of any issues that did not need full investigation at trial. The parties and their legal representatives were required to ensure that the duty of disclosure was complied with; they were also required to assist the Court in disposing of the proceedings in a just, timely and cost-effective manner.
61It was my view that cross-examining the husband on the seventh day of the trial about the existence or otherwise of liabilities that could have and should have been "vouched" well before that stage was a waste of the Court's and the parties' time and resources. I had in mind the extraordinary amount of time that had already been devoted to this litigation and was simply managing the proceedings in an entirely uncontentious manner. In so doing, and noting that the husband could not "vouch" the relevant figure (in spite of the fact that he had had at least a week to do so), I asked him whether I could strike the alleged liability from the "balance sheet". The husband had no hesitation in saying that I could. The fact that senior counsel for the husband may have had discomfort with his client's response says nothing about whether any of the elements of the test for apprehended bias were met.
Recusal submissions at [17]
62The exchange referred to in this paragraph occurred immediately after the "vouching" issue referred to in the recusal submissions at [16]. In effect, that is where it begins: see 11 August 2016 (afternoon session) transcript at 27-39. I accept that I was frustrated with the manner in which the case was proceeding – which, in my opinion, was developing into something of a war of attrition reflecting poorly on the legal practitioners involved.
63It is true that I apologised, in open court, immediately upon the trial resuming on the following morning. The fact that the recusal submissions provide no footnote referring to the relevant transcript reference is perhaps indicative of the combative and jaundiced attitude to this dispute adopted by the parties' legal practitioners (no doubt on instructions from their clients). The comments I made on the morning of 12 August 2016 are set out below: see 12 August 2016 transcript (morning session) at 2-3:
Before we proceed with today, I want to say something, if I may. Firstly, I apologise to the parties and to counsel and their instructors for my impatience, fractiousness and intemperate comments yesterday. There can be no doubt that trials have a life of their own, and this trial appears to have more lives than a cat.
I can assure the parties, though, that I haven't lost sight of the evidence or the task which confronts the Court. I am, I must say, far from reaching a conclusion as to the ultimate outcome of the proceedings, which will be determined on the merits, and without fear or favour on my part. In determining the outcome of the case, I can assure you that I will be placing no weight on irrelevant or prejudicial material. The law requires me, however, to manage this case, and all cases listed before me, actively and with a view to ensuring that the limited resources available to the Court are not squandered unnecessarily.
Indeed, the Rules require judges to encourage parties to negotiate a settlement if it is appropriate for them to do so, to promote the saving of costs, and to take into account the needs of other cases when determining what might be an appropriate share of the Court's resources to allocate to the case actually before the judge. The judge is also required to endeavour to apply the Rules in a way that promotes family relationships after the resolution of the dispute, where that may be possible.
It's also fair to say that the Rules say that parties to the proceedings and the parties' lawyers have certain responsibilities. These include complying with the duty of disclosure, complying with time limits, assisting in the just, timely and cost-effective disposal of cases, identifying the issues genuinely in dispute in a case and being satisfied that there is a reasonable basis for alleging, denying or not admitting a fact.
The law does not require me to sit silent during the course of the trial, and it recognises that the dialogue between counsel and the judge can be helpful in identifying the real issues in the proceedings. Similarly, the expression of tentative views on my part – and I can assure you, all views I express until the final judgment are tentative – does not mean that I have come to a conclusion about the matter to which I refer.
Put another way, the impatience I displayed yesterday reflected my frustration with the manner in which aspects of the case have been conducted. It says nothing about the manner in which I am likely to decide the issues that I will ultimately be called upon to decide. Now, I remind the parties and the lawyers in the court room of the obligations that they have under the Rules and pursuant to the law. Just as the judge has certain obligations, so do the parties, so do their counsel, and so do their lawyers and I have referred to some of those. It would be wise to keep them in mind.
64There is little purpose in adding to these comments, save to observe that the evidence continued for a further four days after I made them, detailed written submissions were prepared by all parties and that it was not until shortly before 13 September 2016 that the recusal application was made.
Recusal submissions at [18]
65Mr Barton gave his evidence on the eighth, ninth and 10th days of the trial. Like the husband, he was an unimpressive and unreliable witness. It is not to the point that Mr Barton "was simply answering questions being put to him in cross-examination". The judge's role is, among other things, to determine what weight should be given to such evidence.
66To the extent that I may have been dismissive of parts of Mr Barton's evidence, it is because I regarded it as disingenuous, if not deceitful.
67The majority of this paragraph comprises submissions more properly directed to the merits of the case. They do not support an application for recusal.
Recusal submissions at [19]
68Ms Magnoli gave her evidence on 17 August 2016, which was the 11th and final day of the evidence phase of the trial. She was the final witness. I regarded the line of questioning adopted by senior counsel for the husband to be unhelpful, and to amount to little more than posturing and time wasting. The comments complained about were explained immediately after they were made: see 17 August 2016 transcript at 20 to 23. The exchange between the Court and senior counsel for the husband appearing on those pages reveals that the relevance of the subject about which Ms Magnoli was questioned was discussed at length. During that discussion, I made it clear to senior counsel for the husband that, although I had certain preliminary views about the subject, I would not prevent him continuing with his cross-examination dealing with this issue.
69Ultimately, Mr Dowding elected to ask Ms Magnoli some additional questions about the subject referred to in the recusal submissions at [19]. Thereafter, a further exchange occurred: see 17 August 2016 transcript at 24 to 27. During that exchange, I invited Mr Dowding to continue with his cross-examination in relation to the subject. I commented that I would not penalise anybody (in a financial sense) without hearing the entirety of the case and all the submissions and giving due consideration to them. I also said (see 17 August 2016 transcript at 26):
… We are now at the very end of the trial and we’re still going down this track. Now, you've got the witness, you've got the person who attended the mediation, you've got the person who drafted the writ. You can ask the questions. I'm not stopping them.
However, I want to give you fair warning that, in my view, it was probably a very sensible compromise. Whether that particular deal was the right one to do, I don't know. I wasn't there at the time. Whether I would have, or you would have, or anybody else would have advised somebody to settle, I don't know, but one of the things you've got to take into account is what could happen if you win and what could happen if you lose, and when you're dealing with serious opponents, as these people were, you've got to think long and hard about it.…
70Once again, none of the matters referred to in the recusal submissions at [19] realistically support the application.
Recusal submissions at [20]
71This submission appears to have nothing to do with apprehended bias and everything to do with a party's dissatisfaction with an evidentiary ruling made during the course of a lengthy trial. Even if the ruling was incorrect (which I do not accept), the making of it does not realistically support the recusal application.
General observations
72I note that a significant number of the concerns raised in the recusal submissions relate to the Court's interaction or alleged interaction with the husband while he was giving evidence or with senior counsel for the husband. It should not be overlooked that the recusal submissions were not filed on behalf of the husband; they were filed by parties who allege that they were, effectively, at arm’s length from the husband. Senior counsel for the husband did not formally adopt the recusal submissions, although he said that the husband "supports the (recusal) application": see 13 September 2016 transcript at 14. He said that he had nothing further to add.
73I accept that this is not the time to discuss lawyers' duties to the Court in detail. The following paragraphs, however, restate observations which I made in Owens & Owens (No 2) [2010] FMCAfam 2 – which observations are germane to the issues raised in the recusal application.
74The scope of legal practitioners’ duties to the court is summarised in Halsbury's Laws of Australia (see Volume 16 at [250-385] and following):
In addition to the duty to uphold the law, a lawyer also owes duties to the court arising out of the special relationship that a lawyer has with the court. The duties owed to the court override the duties owed by a lawyer to a client or to other persons. The duties to the court include responsibilities in respect of legal processes and proceedings and duties of candour and fairness. …
A lawyer owes a duty to the court not to abuse the court's processes by the improper initiation or maintenance of court proceedings. Further, a lawyer owes a duty to the court to refrain from conduct which may tend to defeat justice and must not consciously mislead the court …
A lawyer owes a duty to the court of complete candour and honesty. A lawyer must not keep any information from the court which ought to be before it or in any way mislead the court by stating facts which are untrue, mislead a judge as to the true facts or knowingly permit a client to attempt to deceive the court. … (Emphasis added and footnotes removed.)
75Elsewhere in Halsbury's Laws of Australia, the authors record (see Volume 20 at [325-8395]):
Counsel:
• should never knowingly mislead the court;
• must be fair and candid at all times;
• should make economic use of court time; and
• should not engage in irrelevant or prolonged cross-examination.
Within these boundaries counsel may generally decide on how the case should be presented … (Footnotes removed.)
76Similar statements appear in Halsbury's Laws of England: (5th edition, 2009) Volume 66 at [1211]:
A barrister must take all reasonable and practicable steps to avoid unnecessary expense or waste of the court's time. He should, when asked, inform the court of the probable limits of his case, and he should also inform the court of any developments which affect information already provided. Without detracting from his duty to his client, Counsel can and should exercise in the interests of justice as a whole proper discretion so as not to prolong cases unnecessarily; it is no part of his duty to raise untenable points at length or to embark on lengthy cross-examination on matters that are not in truth at issue. (Footnotes removed.)
77I refer, as well, to Warren CJ's paper entitled The Duty owed to the Court – Sometimes Forgotten, which was delivered (as the keynote address) to the Colloquium of the Judicial Conference of Australia on 9 October 2009. After summarising counsel's obligations in terms similar to those used in the extracts from Halsbury’s quoted above, her Honour wrote:
… practitioners must remain ever mindful of their role as officers of the court and the standards of professional conduct that must attend such positions. The desire to win a case has no part to play in the assessment by a practitioner of their responsibility towards the court. The duty to the client is subordinate to the duty to court. There is a line between permissible robust advocacy and impermissible dereliction of duty. It is incumbent upon practitioners to continue to examine the ethical dimensions of their behaviour for the duration of their career in the law, and indeed after that part of their career has ended. The duty to the court is forevermore.
78A lawyer has a duty to ensure that disputes are resolved in a prompt and efficient manner. Her Honour wrote:
… As officers of the court, it is incumbent upon practitioners to bear in mind the obligation to assist the court and the efficient utilisation of its limited resources. … This obligation should be considered when preparing for and presenting the case. …
79In relation to any potential conflict between a lawyer's duty to the court and to his or her client, her Honour wrote (to Mason CJ's judgment in Giannarelli v Wraith (1988) 165 CLR 543):
… (these duties) are not merely in competition. They do not call for a balancing act. They actually come into collision and demand that, on occasion, a practitioner act in a variety of ways to the possible disadvantage of his client. … The duty to the court is paramount even if the client gives instructions to the contrary. (Emphasis added.)
80In Budd v Kambah Tea Tree Plantations Pty Ltd [2001] NSWCA 180, the New South Wales Court of Appeal considered an assertion to the effect that the trial judge had been biased. It was argued that the trial judge had behaved in an inappropriate manner: continuing, excessive judicial intervention, and the making of comments that were "not only impolite, but also uncomplimentary, pejorative, denigratory, belittling, depreciating, cynical, sarcastic and derisive". It was also argued that the trial judge (in Budd v Kambah Tea Tree Plantations (supra)) had addressed questions to an unrepresented party revealing scepticism about that party’s case.
81In rejecting the applicant's submissions, the Court of Appeal emphasised "the circumstances of the trial". Heydon JA (with whom Rolfe AJA agreed) wrote:
… the vagueness of the evidence called, the lack of creditworthiness of (one of the parties), … the lack of relevant documents, the complexity of the pleadings and the complication of the issues that grew up out of seemingly simple facts ensured that the trial (did not finish in the week allocated to it). … (In those circumstances) it became imperative for the trial judge to seek to ensure that the case finished with a reasonable expedition. …
It was understandable that the trial judge might have become increasingly concerned about keeping the case on the rails. At the best of times trial litigation is a tense and tiring process. … To the extent that the trial judge's statements did merit the characterisation which (the applicant) gave them, they were not made without considerable provocation, and the trial judge may well have felt it was necessary to be extremely blunt towards (the applicant) in order to ensure that the messages she rightly wished to convey were received.
… Many of the trial judge's criticisms were entirely justified. … (The trial judge) was entitled to seek to shorten longueurs, reduce repetition, ensure fairness and precision in the formulation of questions and curtail rambling arguments about admissibility. … A reading of the whole transcript reveals that the trial judge was not at any stage going to conduct the trial merely by sitting back and letting the parties conduct the case without any intervention or restraint at all. Her technique is a common modern technique, and a not unacceptable one, particularly in a busy trial court under pressure from crowded lists. Many of the observations complained of were not directed to (the applicant’s) side alone. There were numerous other observations not referred to directed to perceived deficiencies in (the other side's case). … Trial litigation often calls for plain speaking, directness and, sometimes, asperity. (Emphasis added.)
82Davies AJA wrote:
… (The trial judge) certainly displayed signs of irritation with some of (the applicant’s) evidence, his questioning of witnesses and his submissions. However, she was, in my opinion, entitled to do so. The trial judge gave (the applicant) a full and fair opportunity to present his case and she decided the issues of liability having regard to the probabilities of the case. …
83The Victorian Court of Appeal was required to consider similar allegations against a trial judge in Anderson v National Australia Bank [2007] VSCA 172. Like the New South Wales Court of Appeal in Budd v Kambah Tea Tree Plantations (supra), the Court took care to ensure that the allegations were put in context. Maxwell P wrote at [81]:
Having reviewed the transcript, and examined all of the particular exchanges to which (the applicant) draws attention, I reject her claims of bias. At a number of points during (the applicant's) evidence, the Judge responded with questions which clearly conveyed his Honour’s scepticism about the evidence being given. But these responses were, in my opinion, fully justified by the sheer improbability of the account which (the applicant) gave. Moreover, it was preferable that his Honour express such doubts at the time, in the presence of the witness, and seek clarification or confirmation of what was being said. This is not prejudgement. On the contrary, it is perfectly proper for a Judge to convey to the parties and their representatives his or her reactions to matters of fact or law as they emerge. The significance of such comments can then be assessed and, where necessary, they can be responded to. (Emphasis added.)
84Maxwell P also considered an allegation to the effect that the trial judge had intervened frequently during the course of cross-examination. His Honour concluded (at [83] and [84]) that the interventions were –
… no more than was required for the proper discharge of the trial judge's function of controlling the proceedings and, in particular, ensuring that cross-examination was both fair and relevant to the issues. It is the judge who must decide the case and who determines questions of relevance. …
… Time spent in court is enormously expensive, both for the parties and for the public purse which funds judges and courts, and there are always other cases waiting to be heard. Judges can, and should, intervene as required to ensure that the available time is profitably used. (Emphasis added.)
85In agreeing with Maxwell P, Chernov JA wrote at [86]:
… It might be said that the Judge’s attitude to (the applicant) and her counsel bordered on the belligerent and was in stark contrast to his dealing with counsel for (the other side). The question, however, is not whether the Judge behaved badly but whether his conduct of the trial was the manifestation of his bias against (the applicant). … (Emphasis added.)
86Nettle JA also agreed with Maxwell P. In doing so, his Honour wrote (commencing at [92]):
… (As appears) more clearly from the transcript, the relationship between the judge and counsel for the appellants became unfortunately strained and heated in the course of the trial. There were instances of pointed sarcasm, asperity sometimes amounting to discourtesy, and, occasionally, truculence. There were also occasions when the judge asked questions of the appellant in terms sufficiently sarcastic to imply that he thought that what she said was unlikely. Contrastingly, there was very little asperity in the judge’s remarks to counsel who appeared for (the other side), and no hint of incredulity in his Honour’s questions of (the other side’s) witnesses. Perhaps it is not surprising, therefore, that counsel who appeared for the appellants below should have thought in terms of bias.
As against that, however, it is not easy to conduct a complex and lengthy trial without betraying at least some sign of emotion, and I do not doubt that the judge was considerably provoked. A large amount of the cross-examination was irrelevant and (otherwise deficient). Much of it was focussed at the periphery and took an inordinate amount of time.
Furthermore, the judge was entitled if indeed not bound to attempt to contain the delay and ensure fairness and precision in the formulation of counsel’s questions. Presumably, his Honour thought it necessary to behave as he did in order to convey to counsel his dissatisfaction with counsel’s performance. Putting aside the use of sarcasm, there was also nothing wrong in the judge seeking to convey to the appellant his initial reaction to some of the things which she said. It served to avoid the risk of misunderstanding and to enable her to amplify or qualify points of misgiving.
In Budd v Kambah Tea Tree Plantations Pty Ltd, Heydon JA sanctioned the sort of approach adopted by the judge in this case as the modern and not unacceptable technique of conducting a trial, particularly in a busy trial court under pressure from crowded lists. As his Honour remarked, trial litigation often calls for plain speaking, directness and sometimes asperity. Unquestionably, a trial judge like any judge should strive to avoid truculence and discourtesy. But in the scheme of things, it is almost inevitable that there will be some of it in any hard fought cause. (Footnotes deleted and emphasis added.)
Conclusion
87As indicated above, I find that waiver has taken place, and that the recusal application should be dismissed for that reason alone.
88If I am wrong in that regard, I am of the view that there is no merit in the recusal application – whether the matters contained in the recusal submissions are considered individually or cumulatively. I do not accept that a fair-minded lay observer might reasonably have apprehended that I might not bring an impartial mind to the resolution of the question or questions I was required to decide. That question, or those questions, relate to property settlement or alteration of property interests between the husband and the wife.
89Nothing in the recusal submissions identifies what it is alleged might lead me to decide the case other than on its legal and factual merits. Further, it is not apparent that there is any logical connection between what I am alleged to have said or done and "the feared deviation from the course of deciding the case on its merits". The law permits a trial judge to express tentative or preliminary views without taking such expressions to indicate prejudgement, and trial 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". All counsel had every opportunity to deal with any observations or views that I expressed during the trial, and a number of their submissions were forcefully expressed, leading to robust exchanges.
90Put another way, no nexus was demonstrated between the matters relied on as indicators of bias or pre-judgment (on the one hand) and the resolution of the question or questions I am required to decide (on the other).
91The reality is that counsel for the additional parties and senior counsel for the husband had every opportunity to supplement the recusal submissions, but they elected not to do so. Nor did they see fit to explain why the recusal application was being made in the dying moments of the trial. In other words, the recusal application stood or fell on the basis of the recusal submissions and the affidavit filed in support of the application (which contained no substantive material other than extracts from the transcript).
92A trial judge has a duty to exercise his or her judicial function when the Court's jurisdiction is regularly invoked. I am "not at liberty to decline to hear cases without good cause". In all the circumstances, no good cause has been demonstrated. In my opinion, the recusal application reflects no more than an apparent concern on the part of the additional parties (and, seemingly, the husband) that I will decide the case adversely to them.
93The application will be dismissed.
I certify that the preceding [93] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
14 November 2016
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