Charisteas & Charisteas - [2019] FamCAFC 2

FAMILY COURT OF AUSTRALIA

CHARISTEAS & CHARISTEAS AND ORS

[2019] FamCAFC 2

FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO ISSUE SUBPOENAE – Where the application is said to relate to the amended grounds of appeal – Where the amended grounds of appeal allege apprehended bias or in the alternative that the trial judge should have disclosed to the parties that in the trial judge’s opinion the trial judge was unfit to continue to hear and determine the matter - Where paragraphs 12 and 13 of the affidavit filed in support of the application are largely conclusionary in character about the way that the trial judge is alleged to have behaved during the proceedings – Where the applicant does not depose to the basis of the conclusions – Where the paragraphs are inadmissible and are struck out – Discussion of the jurisdiction of a single judge to grant leave to issue subpoenae in an appeal – Discussion of the test to be applied when determining an application for leave to issue subpoenae – Where the “apparent relevance” of the documents sought to be produced by the subpoenae is not established – Where the common law doctrine of judicial immunity applies to the documents sought to be produced by the subpoenae – Where leave is refused – Application dismissed.

Evidence Act 1995 (Cth) ss 75, 76, 135
Family Law Act 1975 (Cth) ss 94(2B)(c), 94(2D)
Judges’ Salaries and Pensions Act 1950 (WA) s 6(2b)
Judges’ Pensions Act 1968 (Cth)
Family Law Rules 2004 rr 1.12, 22.34

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Fingleton v Queen (2005) 227 CLR 166
Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038
Herijanto v Refugee Review Tribunal & Ors (2000) 170 ALR 379
Johnson v Johnson (2000) 201 CLR 488
Mandic v Phillis (2005) 225 ALR 760
Mann v O’Neill (1997) 191 CLR 204
National Employers’ Mutual General Association LtdvWaind and Hill [1978] 1 NSWLR 372
Santos Ltd & Ors v Pipelines Authority of SA (1996) 66 SASR 38

APPELLANT/FIRST CROSS RESPONDENT:

Mr Charisteas

FIRST RESPONDENT/CROSS APPELLANT:

Mrs Charisteas

SECOND RESPONDENT/SECOND CROSS RESPONDENT:

XYZ Pty Ltd

THIRD RESPONDENT/THIRD CROSS RESPONDENT:

Mr Barton

FOURTH RESPONDENT/FOURTH CROSS RESPONDENT:

Mrs Charisteas Snr (by her Case Guardian Ms Eaton)

FIFTH RESPONDENT/FIFTH CROSS RESPONDENT:

Mr E Charisteas

SIXTH RESPONDENT/SIXTH CROSS RESPONDENT:

Ms Solano

SEVENTH RESPONDENT/SEVENTH CROSS RESPONDENT:

Ms Magnoli

EIGHT RESPONDENT/EIGHTH CROSS RESPONDENT:

Mr Barton & Mrs Charisteas Snr (as Executors of the Estate of the late Mr J Charisteas)

FIRST INTERVENOR:

[A F] Ltd

SECOND INTERVENOR:

State of Western Australia

FILE NUMBER:

PTW

4624

2006

APPEAL NUMBER:

WEA

2018

DATE DELIVERED:

16 January 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide by video link from Perth

JUDGMENT OF:

Strickland J

HEARING DATE:

5 November 2018

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

12 February 2018

LOWER COURT MNC:

[2017] FCWA 183

REPRESENTATION

COUNSEL FOR THE APPELLANT/FIRST CROSS RESPONDENT:

Mr Hannan

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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Details

AGLC: Charisteas & Charisteas [2019] FamCAFC 2
Case: [2019] FamCAFC 2
Decision Date: 16 January 2019

CaseChat Overview and Summary

The case of Charisteas & Charisteas involved an application in an appeal within the Family Law Court of Australia. The applicant sought leave to issue subpoenae in relation to the amended grounds of appeal, alleging apprehended bias on the part of the trial judge or, in the alternative, that the trial judge should have disclosed that they were unfit to continue hearing the matter. The affidavit supporting the application contained largely conclusionary statements about the trial judge's alleged behaviour during the proceedings, without any deponent to attest to the basis of these conclusions. Consequently, the paragraphs were deemed inadmissible and were struck out.

The legal issues before the court encompassed the jurisdiction of a single judge to grant leave to issue subpoenae in an appeal, as well as the applicable test for determining such an application. The court examined whether the "apparent relevance" of the documents sought by the subpoenae was established and considered the implications of the common law doctrine of judicial immunity on the documents in question. Ultimately, the court found that leave was not warranted and dismissed the application.

In reaching this decision, the court applied the provisions of the Evidence Act 1995, the Family Law Act 1975, and the Judges' Salaries and Pensions Act 1950, among others. The Family Law Rules 2004 were also referenced in the context of the procedural aspects of the application.

The court's reasoning was grounded in the principle that the documents sought were not relevant to the appeal's grounds and were protected by judicial immunity. The court held that the application did not meet the necessary criteria for granting leave to issue subpoenae, thereby dismissing the application.

Orders