Charisteas & Charisteas
[2019] FamCAFC 2
•16 January 2019
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 |
| 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 | of | 2006 |
| APPEAL NUMBER: | WEA | 9 | of | 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 |
| SOLICITORS FOR THE APPELLANT/FIRST CROSS RESPONDENT: | DS Family Law |
| COUNSEL FOR THE FIRST RESPONDENT/CROSS APPELLANT: | Ms Parkinson |
| SOLICITORS FOR THE FIRST RESPONDENT/CROSS APPELLANT: | DCH Legal Group |
| THE SECOND RESPONDENT/SECOND CROSS APPELLANT: | No appearance |
| THE THIRD RESPONDENT/THIRD CROSS APPELLANT: | No appearance |
| COUNSEL FOR THE FOURTH RESPONDENT/FOURTH CROSS RESPONDENT: | Dr Dickey QC |
| THE FOURTH RESPONDENT/FOURTH CROSS RESPONDENT: | By her Case Guardian Ms Eaton |
| THE FIFTH RESPONDENT/FIFTH CROSS RESPONDENT: | No appearance |
| THE SIXTH RESPONDENT/SIXTH CROSS RESPONDENT: | No appearance |
| THE SEVENTH RESPONDENT/SEVENTH CROSS RESPONDENT: | No appearance |
| THE EIGHT RESPONDENT/EIGHTH CROSS RESPONDENT: | No appearance |
| COUNSEL FOR THE FIRST INTERVENOR: | Mr Hedges |
| SOLICITORS FOR THE FIRST INTERVENOR: | Zilkens Lawyers |
| COUNSEL FOR THE SECOND INTERVENOR: | Mr Thompson SC |
| SOLICITORS FOR THE SECOND INTERVENOR: | State Solicitor for Western Australia |
Relevant Order made 5 November 2018
….
The Application in an Appeal filed on 24 October 2018 seeking leave to issue subpoenae be dismissed.
…
Order
Paragraphs 12 and 13 of the affidavit of the husband filed on 24 October 2018 be struck out.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Charisteas & Charisteas and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: WEA 9 of 2018
File Number: PTW 4624 of 2013
| Mr Charisteas |
Appellant/First Cross Respondent
And
| Mrs Charisteas |
First Respondent/Cross Appellant
And
| XYZ Pty Ltd |
Second Respondent/Second Cross Respondent
And
| Mr Barton |
Third Respondent/Third Cross Respondent
And
| Mrs Charisteas Snr (by her Case Guardian Ms Eaton) |
Fourth Respondent/Fourth Cross Respondent
And
| Mr E Charisteas |
Fifth Respondent/Fifth Cross Respondent
And
| Ms Solano |
Sixth Respondent/Sixth Cross Respondent
And
| Ms Magnoli |
Seventh Respondent/Seventh Cross Respondent
And
| Mr Barton & Mrs Charisteas Snr (as Executors of the estate of the late Mr J Charisteas) |
Eighth Respondent/Eighth Cross Respondent
And
| [A F] Ltd |
First Intervenor
And
| State of Western Australia |
Second Intervenor
REASONS FOR JUDGMENT
Introduction
On 24 October 2018 Mr Charisteas (“the husband”) filed an Application in an Appeal seeking leave to issue subpoenae to the Attorney-General of the State of Western Australia, the Treasurer of the State of Western Australia, the Attorney-General of the Commonwealth of Australia, and the Minister for Finance of the Commonwealth of Australia.
Each subpoena seeks the production of a class of documents from 1 August 2016 until the present time, and the class is described in similar terms for the State and the Commonwealth Ministers, namely:
All files, records and documents of whatsoever nature and kind relating to the certification by the Minister in exercise of power under [either s 6(2b) of the Judges’ Salaries and Pensions Act 1950 (WA) or the Judges’ Pensions Act 1968 (Cth)] in respect of the retirement by [the trial judge] as a judge of the Family Court of [Western Australia or Australia].
The trial judge was the judge in the matter which is presently the subject of the appeal in respect of which this application is brought.
The application was supported by an affidavit filed by the husband on 24 October 2018.
The application was heard by this Court on 5 November 2018 when I determined that paragraphs 12 and 13 of the said affidavit were inadmissible and should be struck out, and I dismissed the said Application in an Appeal filed on 24 October 2018. I indicated that I would provide my reasons for those determinations at a later date, and I now do so as follows.
The proceedings before the trial judge
The trial of the competing applications for property settlement took place before the trial judge between 3 August 2016 and 17 August 2016, and on 13 September 2016.
On 12 February 2018 the trial judge delivered reasons for judgment and made final property settlement orders.
On 12 March 2018 the husband filed a Notice of Appeal against those orders.
On 11 April 2018 Mrs Charisteas (“the wife”) filed a Notice of Cross Appeal against some of the orders made by the trial judge.
On 16 April 2018 Sutherland J made an order, inter alia, staying the property settlement orders pending the outcome of the appeal.
On 18 June 2018 the husband filed an Amended Notice of Appeal, and relevantly to the application before the court, the following grounds of appeal were added:
21.At some point between the commencement of Trial and the delivery of the Judgment (without disclosing same to the parties to the proceedings), the LTJ sought from the Attorney General of the State of WA and the Attorney General of the Commonwealth of Australia, a certificate certifying that he was incapable of continuing to undertake the role (and hold the commission) of a Judge of the Family Court of Western Australia and of the Federal Court of Australia by reason of permanent disability or infirmity. By reason of such matters, the orders of the LTJ should be set aside on the grounds of an apprehension of bias.
22.In the alternative to 21 above, at some point during the proceedings the LTJ determined he was unfit/incapable of continuing to undertake the role of a Judge (by reason of permanent disability or infirmity) and sought (or had sought) medical evidence in support of same and submitted it to the Attorney General of the State of Western Australia and the Attorney General of the Commonwealth of Australia and should have disclosed to the parties to the proceedings that in [the trial judge’s] opinion he was unfit to continue to hear and determine the matter.
The relevant parties to the proceedings
The husband is the appellant/first cross respondent in these proceedings and the wife is the first respondent/cross appellant.
There are three adult children of the marriage. They are the fifth, sixth and seventh respondents/cross respondents in these proceedings.
The second respondent/second cross respondent is XYZ Pty Ltd (“XYZ”), the trustee for the XYZ Trust (“the trust”).
Mrs Charisteas Snr is the husband’s mother and, by her case guardian Ms Eaton (the husband’s sister), she is the fourth respondent/fourth cross respondent in these proceedings. The third respondent/third cross respondent is Mr Barton. Mr Barton and the husband’s mother are joint directors of XYZ.
Mr Barton and the husband’s mother are also the executors of the estate of the husband’s father which is the eighth respondent/eighth cross respondent in these proceedings. The husband’s father died in February 2008 at age 80.
It is only the husband, the wife and the husband’s mother who are participating in the appeal and cross appeal.
The first intervenor, [A F] Ltd, provided litigation funding to the wife for the purposes of the proceedings before the trial judge, but has not yet sought to be heard in relation to the appeal or the cross appeal.
The second intervenor, the State of Western Australia, only sought to be heard in relation to the Application in an Appeal filed on 24 October 2018 by the husband seeking leave to issue the subpoenae. In the absence of any opposition, I granted the second intervenor leave to appear on 5 November 2018.
Discussion
The application before the court is said to relate to the amended grounds of appeal and to repeat, is supported by the husband’s affidavit filed on 24 October 2018.
The application is neither consented to nor opposed by the wife, and neither she nor the husband’s mother sought to be heard in relation to the application.
The application was opposed by the second intervenor.
There was no appearance by or on behalf of the Commonwealth Minister for Finance or the Commonwealth Attorney-General, but it was conceded by the husband that if the second intervenor was successful in opposing the application insofar as it related to the Treasurer of Western Australia and the Attorney-General of Western Australia, then the application would necessarily also be unsuccessful in relation to the Commonwealth Ministers.
The first issue raised by the second intervenor was the admissibility of paragraphs 12 and 13 of the husband’s affidavit in support of the application. Those paragraphs provide as follows:
12.During the course of the Trial I was concerned about several aspects of the Judge’s behaviour Additionally, [Mr W] (who [is very experienced] in the Family Law jurisdiction and who I retained as Senior Counsel for Trial) also observed that [the trial judge’s] behaviour during the Trial was erratic, irascible, interventionist, rude and demeaning to witnesses and counsel and dismissive of arguments and submissions before they had been fully developed.
13.In light of that behaviour, I remain concerned that, while acting as the Trial Judge, [the trial judge] was suffering from a mental condition that rendered [the trial judge] unable to properly fulfil [the trial judge’s] duties.
The basis of the second intervenor’s objections to paragraphs 12 and 13 of the affidavit is that they contain “unsubstantiated conclusions about the trial judge’s behaviour and hearsay conclusions based upon his counsel’s observations” (at [9] of the second intervenor’s written submissions) and accordingly, they are inadmissible.
Counsel for the husband submitted that the paragraphs were admissible under s 75 of the Evidence Act 1995 (Cth) (“Evidence Act”) which permits the giving of hearsay evidence in interlocutory proceedings if the party adducing it also adduces evidence of its source. That is, it was counsel for the husband’s submission that the affidavit had been provided on information and belief, the source was disclosed and the proceeding was interlocutory.
I make three comments about the husband’s submission in that regard. First, assuming that the application is interlocutory rather than final, and that s 75 applies, something which is not a forgone conclusion, s 135 of the Evidence Act might still require the evidence to be excluded on the basis that it is “misleading”. Secondly, the opinion rule in s 76 of the Evidence Act is not excluded, and I will return to that issue shortly. Thirdly, the only part of paragraphs 12 and 13 that would fall within the hearsay exception is the fact that the husband was told that Mr W [was very experienced in family law]. The balance of the paragraphs is conclusionary about the way in which a judge is said to have behaved during the proceedings, and I will return to that issue shortly as well.
At to the question of s 76 of the Evidence Act and the opinion rule. In paragraph 13 of the affidavit, the husband expresses an “opinion” that he was “concerned that, while acting as the Trial Judge, [the trial judge] was suffering from a mental condition that rendered [the trial judge] unable to properly fulfil [the trial judge’s] duties”. However, there is nothing to suggest that the husband has the necessary qualifications or specialised knowledge to enable him to provide that “opinion”, and thus, s 76 would render that evidence inadmissible.
As to the fact that the paragraphs are largely conclusionary in character about the way that the trial judge is alleged to have behaved during the proceedings, the husband does not depose to the basis of the conclusions made so as to enable a judge to determine whether what has been observed amounts to an apprehension of bias or a demonstration that the trial judge was suffering from a medical condition such as to make out Grounds 21 and 22 of the Amended Notice of Appeal.
In respect of what Mr W is said to have observed, that is, “the trial judge’s behaviour during the Trial was erratic, irascible, interventionist, rude and demeaning …”, for the same reason as above, those statements are conclusionary about the way the trial judge is said to have behaved. They also do not suggest that by reason of Mr W’ observations either he or the husband perceived that the trial judge was suffering from an incapacity that would have rendered the trial judge unable to deliver a judgment.
Counsel for the husband also submitted that, given that Ground 21 is pleaded in terms of apprehended bias, the paragraphs are admissible in that they go to the state of mind of the husband as a litigant, and how he felt the trial was conducted. However, with respect, this submission is misconceived.
The test for apprehended bias is well known (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344-349; Johnson v Johnson (2000) 201 CLR 488, 492), namely:
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 test is an objective one and not concerned with the subjective state of mind of the litigant.
If apprehended bias could be established on the basis of what litigants thought about a particular judge we would never have trials heard. Thus, I cannot see the connection between the facts pleaded in Ground 21 and an apprehension of bias.
The consequence of striking out paragraphs 12 and 13 of the affidavit is that the evidence available to support the application is nothing more than that the trial judge retired, and a request was made for the provision of information about the reason why he retired, but that request was declined.
As submitted by the second intervenor, “[t]he existence of a permanent disability or infirmity which entitles a judge to retire, but retain [a] judicial pension, does not by itself establish that a judge is incapable of delivering a judgment. It would be necessary to establish that there was some connection between the alleged disability or infirmity and the capacity of the judge to deliver a judgment” (at [8] of the second intervenor’s written submissions). Plainly the husband sought to establish such a connection by relying upon paragraphs 12 and 13 of his affidavit. However, as I have discussed, those paragraphs do not in fact demonstrate the necessary connection, but having been struck out, there would appear to be nothing else in the affidavit to establish that connection.
In any event, turning to the application for leave to issue the subpoenae.
Pursuant to r 22.34 of the Family Law Rules 2004 (Cth) (“the Family Law Rules”) a subpoena may be issued in an appeal only if leave is given by (a) the Full Court, or (b) for an appeal heard by a single judge – that Judge.
The husband’s counsel correctly submitted that the Family Law Rules have to be read subject to the Family Law Act 1975 (Cth), and s 94(2B)(c) provides that a single judge may give directions about the conduct of an appeal, and s 94(2D) provides that applications of a procedural nature may be heard by a single judge. Thus, a single judge can hear and determine this application.
However, if I am wrong about that, the effect of r 1.12 of the Family Law Rules is that I am able to dispense with the requirements of r 22.34, and I would be content to proceed on that basis to hear and determine the application.
As can be seen, leave is required to issue a subpoena in an appeal, and there was some discussion during the hearing as to what is required for leave to be granted given that there appears to be no authority on point.
The second intervenor submitted that there needs to be “a real prospect that some of the documents returned upon the subpoena would be relevant and admissible upon the hearing of the appeal.” Otherwise, there would be no legitimate forensic purpose in obtaining the documents.
However, that does no more than invoke the principle that for a subpoena to issue it must be demonstrated that there is a legitimate forensic purpose in seeking the production of the documents identified in the subpoena (Santos Ltd & Ors v Pipelines Authority of SA (1996) 66 SASR 38, 52), and that was of course conceded by the husband in his submissions. Accordingly, I turn to consider that issue here.
A legitimate forensic purpose is usually established by demonstrating that the documents sought have apparent relevance to the issues in the substantive proceeding, namely here, Grounds 21 and 22 of the Amended Notice of Appeal (Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038).
“Apparent relevance” refers to adjectival as distinct from substantive relevance (National Employers’ Mutual General Association LtdvWaind and Hill [1978] 1 NSWLR 372, 381), and there has been a number of expressions in the authorities of what is required. One that is often referred to, is whether the documentation called for could possibly throw light on the issue in the substantive proceedings (see, eg, Mandic v Phillis (2005) 225 ALR 760 at [36]).
Here, I am not satisfied that in considering the issues raised in Grounds 21 and 22 of the Amended Notice of Appeal the apparent relevance of the documents has been established.
As to Ground 21, none of the documents sought are relevant to the allegation of apprehended bias. As submitted by the second intervenor (at [10] of the second intervenor’s written submissions):
…the allegation of bias is not logically connected with the claim that the trial judge suffered from a disability or infirmity which affected [the trial judge’s] capacity to deliver a judgment. A person may be incapable, but not biased. Equally, a person may be capable, but biased.
Further, and also in relation to Ground 22, the second intervenor submitted (at [8] of the second intervenor’s written submissions) as follows:
…The existence of a permanent disability or infirmity which entitles a judge to retire, but retain [a] judicial pension, does not by itself establish that a judge is incapable of delivering a judgment. It would be necessary to establish that there was some connection between the alleged disability or infirmity and the capacity of the judge to deliver a judgment.
As I have explained above, such a connection has not been established, and particularly given the striking out of paragraphs 12 and 13 of the husband’s affidavit.
Finally, and specifically in relation to Ground 22, it is said there that the trial judge “determined that [the trial judge] was unfit or incapable of continuing to undertake the role of a judge and that [the trial judge] should have disclosed that to the parties”. However, there is no evidence of any such determination, and without that evidence the ground has no basis whatsoever.
If I am wrong about the apparent relevance of the documents sought, then I am of the view that they still cannot be produced because they are the subject of common law judicial immunity, and perhaps public interest immunity.
Judicial Immunity
The actions of any judge of a superior court, which includes the Family Court of Western Australia, are immune from civil suit by operation of the doctrine of judicial immunity. As Gleeson CJ said Fingleton v Queen (2005) 227 CLR 166 at [38], judicial immunity is vital to the independence of the judiciary. In Mann v O'Neill (1997) 191 CLR 204, Gummow J described judicial immunity as serving two purposes (at 239):
The first is to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences. The second is.. the avoidance of the re-agitation by discontented parties of decided cases after the entry of final judgment, other than by pursuit of any available avenue of appeal..
As Gaurdron J said in Herijanto v Refugee Review Tribunal & Ors (2000) 170 ALR 379 at [16]:
There is no difficulty in saying that, in an appropriate case, judges may be compelled to disclose the record on which they have acted. In the context of the judicial process, "the record" bears a clear meaning. The same is not necessarily true in the context of administrative decisions. Thus, it is preferable to identify what is within the immunity, rather than that which is outside it. And in my view, the immunity is immunity from disclosing any aspect of the decision-making process. That is what is required to ensure freedom of thought and independence of judgment (citations omitted).
Relevantly, the second intervenor submitted:
15.While the issue of subpoenas to Ministers concerning the medical condition of a judge is not a civil action directly brought against the former judge …, it is the use of the court’s processes to take steps which may publicly disclose sensitive information and thereby harass a former judicial officer.
16.The basis for the rules about judicial immunity suggest that the paramount public interest is in ensuring an independent judiciary, which can carry out its functions without personal consequences. That must include the public disclosure of sensitive medical information.
…
18. Disclosure would render judgments and orders of the court open to collateral attacks based not on legal or factual errors, but on allegations as to a judge’s fitness to conduct trials and deliver judgments. In allowing a collateral attack of that type the integrity of the court, and of the administration of justice, is undermined. Disclosure may also have a chilling effect in respect of any future certifications under s 6(2b) of the Judges’ Salaries and Pensions Act 1950, for fear that the material relied upon for those certifications may be disclosed in appeal proceedings.
I agree with those submissions, and find that the doctrine of judicial immunity applies here to prevent the documents sought being produced.
In submissions it was suggested that public interest immunity may also apply because, both judicial immunity and public interest immunity look to safeguard the public interest, and it is in the public interest that the information which is sought by the husband ought not to be disclosed to ensure the independence of the judiciary (at [17] of the second intervenor’s written submissions). That may be so, and it may also be the case that there would be particular documents or classes of documents within the scope of the subpoenae that would be protected from disclosure by public interest immunity, but it seems to me that the question of the production of the documents sought is more aptly considered in the context of the principle of judicial immunity.
The effect of that principle is that the trial judge could not be required to give evidence about the conditions that the trial judge may or may not have been suffering when preparing the judgment subject of the appeal. In this case whilst the information sought is not direct from the trial judge, and I adopt the words of the second intervenor during argument, the subpoena application is merely a “collateral attack upon the principle [of judicial immunity] to seek to obtain [that evidence] through a backdoor means” (Transcript 5 November 2018, p.24 lines 31-32).
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 16 January 2019.
Legal Associate:
Date: 16 January 2019
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