Charisteas v Charisteas & Ors

[2021] HCATrans 28

[2021] HCATrans 028

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P38 of 2020

B e t w e e n -

G CHARISTEAS

Applicant

and

Z V CHARISTEAS

First Respondent

YWB PTY LTD

Second Respondent

L W BANDY

Third Respondent

A CHARISTEAS (BY HER CASE GUARDIAN R ELIAS)

Fourth Respondent

E A CHARISTEAS

Fifth Respondent

K A SOTIROSKI

Sixth Respondent

S M MANOLAS

Seventh Respondent

L W BANDY & A CHARISTEAS (AS EXECUTORS OF THE ESTATE OF D CHARISTEAS)

Eighth Respondent

Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 FEBRUARY 2021, AT 12.22 PM

Copyright in the High Court of Australia

____________________

BELL J:   In this matter:

For the applicant, MR F.A. ROBERTSON, SC appears with MR M. SUPLJEGLAV.  (instructed by DS Family Law)

For the first respondent, MR M.R. BERRY, SC.  (instructed by DCH Legal Group)

BELL J:   I note no appearances for the second to eight respondents.  Yes, Mr Robertson. 

MR ROBERTSON:   Yes, may it please the Court, you should have from the respondent a substituted response to the special leave application and our short reply thereto. 

BELL J:   Yes, I believe we have both of those.  Mr Robertson, I think perhaps it might be most useful if we were to hear from Mr Berry first. 

MR ROBERTSON:   May it please the Court. 

BELL J:   Yes, Mr Berry.

MR BERRY:   Yes, your Honours.  In one of the application books is our substituted response of 14 January 2021.  If I may address your Honours firstly in relation to the bias aspect of the special leave application. 

BELL J:   Yes. 

MR BERRY:   Your Honours, the difference between the majority and the learned Chief Justice in this matter appears to turn on the significance placed by Chief Justice on disclosure and the nature of that disclosure by the wife’s then counsel and by the learned trial judge, and the different view taken by the majority about what inferences or conclusions could be drawn from the disclosure which was given, and also what weight should be attached to the oaths of office which the learned trial judge had and which the wife’s counsel owed to the Court in terms of her duties to the Court. 

We would respectfully contend that in relation to disclosure this Court in Ebner’s Case, at page 360, at paragraph 68 observed that a distinction should be drawn “between considerations of prudence and requirements of law”.  And the majority of the Court in that case also observed at paragraph 72, at the foot of 360 to 361 that:

Disclosure of association may raise more difficult questions than are presented by the straightforward case of ownership of shares in a corporation.

Which was the issue in Ebner.  In this particular case, your Honours, the majority of the Full Court of the Family Court of Australia analysed the circumstances in which the disclosure was given and, importantly, were prepared to give credence and weight, at face value, to what the wife’s counsel stated in her letter to the husband’s solicitors which was provided two weeks after the request.

If I can take your Honours to that letter, it is found in the second application book, at pages 471, 472, at line 40 on page 471.  This is the letter written by the husband’s lawyers which refers to “gossip”.  This letter was sent three months after orders were made.  At 472, at line 30, on 22 May, counsel for the wife wrote a response. 

Now, importantly, your Honours, we would draw your attention to line 40, on page 472, where counsel for the wife said that she was aware that gossip started “in early February 2016” after herself and the learned trial judge “shared a drink”.  At 473, in paragraph 2, at line 5, Ms Anderson makes it clear that she has not and never has been:

in an intimate relationship with Mr Walters QC –

The evidence, your Honours, does not establish that the nature of the association between the learned trial judge and the wife’s counsel extended beyond anything other than a friendship and a social relationship.  This is a common state of affairs between counsel and members of the judiciary.

BELL J:   Mr Berry, I wonder if I could just interrupt at this moment to just raise this with you.  At application book 516, paragraph 175, in the joint reasons in the Full Court, it is noted that after judgment was reserved, the judge had:

private meetings with counsel for the wife –

And I interpolate this in circumstances in which the litigation had a long and acrimonious history.  Their Honours in their joint reasons observed that:

judicial practice required [the judge] to establish that the other parties agreed –

that that private contact:

could go ahead.

Their Honours went on to reason that the circumstance that that had not occurred suggested:

that the primary judge –

may not have appreciated:

that the strictures against private communication which applied –

It was then said that:

the hypothetical observer would understand that a judge may hold genuinely mistaken views about the application of these principles and, as a reasonable person, would not regard the lack of disclosure as suggestive of anything sinister about the contact.

Mr Berry, at first blush, it might be thought that that is to pose a standard somewhat less rigorous than the standard in Ebner and Johnson, and other decisions of this Court. 

MR BERRY:   Your Honour, taken alone without examining the factual context of the case, I would respectfully agree with your Honour, but the feature of the majority’s decision was to closely analyse the facts and the nature of the disclosures which were made and also to place a less critical eye on the nature of the response that counsel for the wife gave in her letter.  In particular, what the majority placed weight on in the context of your Honour’s question is at 517 of the application book at lines 5 to 10.

The majority were prepared to place some significant weight on the complete cessation of text message communication during the trial process and they were prepared to conclude that that was an indication that in having an observance of the required standards they sought:

to ensure that they were true to their oaths and duty to the court –

It was open, we would contend, your Honour, that that having been observed, that absence of text message communication in otherwise a history of very extensive text message communication indicated that the judge and counsel were aware of the requirement not to communicate with each other during the trial and pending the reservation of judgment, and the inference that the majority were prepared to draw and we contend that it was inference which was open having regard to the fact that judges have stringent obligations not to allow extraneous matters to interfere with their decision‑making and counsel have a duty to the court that that was a misunderstanding.

That is an inference, we say, which was open, especially having regard to, that misunderstanding may have been fostered, in particular, by an aspect of counsel for the wife’s understanding as recited in her letter at application book 473, line 40 that:

The communications did not concern the substance of the . . . case –

Your Honours, I would respectfully contend that this is an instance where the communications were imprudent in the extreme.  To echo what this Court said in Ebner at paragraph 68, in terms of prudence this was most imprudent behaviour and worthy of admonition.  But, in terms of whether it gave rise to a reasonable apprehension of bias, we would respectfully contend that the majority were prepared to place weight on the observance by the judge and counsel of the standard not to communicate during the trial and that was evidenced by the cessation of text message communication and the majority were prepared also to infer that there was no other communication during the trial and pending reservation of the decision.

So, your Honour, I respectfully agree at first blush that that observation might cause some concern but the majority did indicate the reasons why it felt it was open to draw that conclusion.

KEANE J:   Mr Berry, ordinarily, if counsel for one side wishes to have private communications with the judge while a decision is reserved, counsel raises the question with the other side, who are given the opportunity to say that is all right or to say do not do that.  That did not happen here.  On your submission, if there had been such a request, and, as almost certainly would have happened, the other side would have said, under no circumstances should you engage in any communications whatsoever until the decision is delivered, do you suggest that the judge and counsel could, thereafter, have properly engaged in private communications?

MR BERRY:   Your Honour, I would submit that, had permission been sought and a negative answer given, the learned trial judge and counsel could not.

KEANE J:   No.  So, the situation is different, is it, because they did not even take that elementary step in relation to ensuring that their ethical obligations were observed?

MR BERRY:   It bears, your Honour, on what inference can be drawn from their failure to do so, whether the inference from the failure is a deliberate decision to contravene the obligation, or whether, as the majority said, it might be inferred that there was a misunderstanding, given that there was some evidence of a clear observance of the standards, and ‑ ‑ ‑ 

KEANE J:   So, is your contention that it turns on whether or not the non‑observance involves deliberate defiance as opposed to simply non‑observance?

MR BERRY:   We would say, your Honour, yes, that that is a relevant distinction, because the non‑observance is still consistent with no intention to discuss the substance of the case or to otherwise impair what would otherwise be required, and in terms of what counsel for the wife was taking into account, if I can refer your Honours to application book 478 at line 10, the Law Society of Western Australia, Ethical and Practice Guidelines, referred to in 37(a) at line 10:

A practitioner must not communicate with the court in the absence of opposing counsel on a matter of substance unless the practitioner has opposing counsel’s consent –

And in 37(b) it does make a reference to:

any communication with the court made in the absence of the opposing party, the practitioner must promptly tell the opponent of any such communication –

It would appear that the communications referred to in that guideline refer to communications on a matter of substance, and this leads or supports the majority’s inference that there was a misunderstanding on counsel’s part.  It may have been that counsel was seeking to observe the letter of the practice directions, but not the spirit of the practice directions, and counsel may have considered that not discussing matters of substance did not offend the requirements that she was required to observe, and the fact that she did consider that she should not communicate with the judge during the trial was observed by the non‑sending of any text messages during the trial.

In terms of the Barrister’s Rules in Western Australia, at 478, line 30, the phrase at 31:

not . . . communicate in the opponent’s absence with the court concerning any matter of substance in connection with the current proceedings ‑

So, your Honours the practice rules and the bar rules refer to communications on matters of substance and it may be that there was some convoluted understanding on the part of counsel about that particular rule and how it should be observed. 

BELL J:   Mr Berry, may I interrupt for a moment to inquire, in Western Australia is it the understanding of counsel that they can have private communications on any topic with a judge before whom they are appearing or before whom they have appeared, in a matter where judgment has not been handed down?

MR BERRY:   In terms of common understanding, your Honour, it is certainly my understanding that is not permitted. 

BELL J:   Yes.

MR BERRY:   So, your Honour drew me to that conclusion by the majority in relation to what inferences – whether that deviated from the standard met by Ebner, and I sought to persuade your Honours that the inference was open from the majority from the nature of the communications where there was a concession made that no contact had occurred for a period for time . And this is a matter where the post‑reservation of judgement conduct is of most concern, in my respectful submission, and not the earlier communications for the reasons given by the majority.  Your Honours would it be appropriate for me to address you in relation to the other grounds which have been raised by the special leave application?

BELL J:   Yes, it would, Mr Berry. 

MR BERRY:   Your Honours, the complaint is made about the statutory powers of the court and one reason why we say this is not a proper vehicle to ventilate this matter is partly the litigation history of the case.  There was a very deliberate decision by the judge in programming this matter to isolate what were the legal issues and source of power for the making of the orders which were ultimately made and that led to what was colloquially called the “interpretation judgment” which was accepted by the appellant as intending to finalise the nature of the orders made, the nature of the power that was to be agitated at trial.

The learned trial judge in the interpretation judgment correctly focuses on the issue which is whether the power to make property settlement orders had been exhausted or spent and that was observed by the learned trial judge at application book 1, at page 155.  If I can refer your Honours to 155 at line 55 where his Honour said:

As will soon become apparent, the nature and scope of the power conferred by s 79 (on the one hand) and the nature and effect of orders made . . . are of greater significance than attempts to categorise the kinds of orders made pursuant to the power – as, for example, “interim”, “partial” or “final” orders.

Much is made by the appellant about characterising the orders.  The learned trial judge correctly focused on the proposition that the primary judge Justice Crisford had not fully exhausted the property settlement powers in making her orders on 9 December 2011 and that is demonstrated, your Honours, if I can briefly take you to the orders which her Honour did make which are set out by the learned trial judge in the interpretation judgment at 138 to 140 of the application book.

Page 138 at line 50, his Honour sets out in full the actual orders made by the learned trial judge, Justice Crisford, and he observes at paragraph 1, her Honour made an order that net assets be divided according to what was in paragraph 346 of her reasons.  For completeness, your Honours, I would refer to her Honour’s reasons at 346 which appear at pages 57 to 59 of the application book.  At line 55, paragraph 346 of her Honour’s reasons sets out what paragraph 1 of her orders was applying to, and your Honours will see that part of what her Honour’s orders was applying to at line item 50 was the vested value of the trust as part of what was being altered by paragraph 1. 

The learned trial judge in the interpretation judgment then correctly observes, we submit, that at 163 the learned trial judge correctly submits ‑ ‑ ‑

BELL J:   Mr Berry, can I just interrupt to ask you this?  If special leave were to be granted on the first ground – and that ground were successful – would that have consequences for the interpretation judgment to which you are now referring us?

MR BERRY:   Your Honours, the answer to your question depends upon whether ‑ not whether the grant of – I am a little unclear, necessarily, about the answer, your Honour.  It would be the case that if the leave was granted and the appeal succeeded, we accept there would need to be a rehearing ‑ ‑ ‑

BELL J:   Yes.

MR BERRY:   ‑ ‑ ‑ and that orders would be vacated.  We accept that proposition.  But, at this stage, if special leave was granted on this point, in a practical sense it is unlikely that anything is going to occur regarding the implementation of these orders.

BELL J:   Thank you, Mr Berry.  Mr Robertson, we do not need to hear from you.  We propose to grant special leave in relation to each of the grounds.  What is the estimated length of the appeal, Mr Robertson?

MR ROBERTSON:   One day, your Honour.

BELL J:   Do you agree with that, Mr Berry?

MR BERRY:   Yes, your Honour.

BELL J:   Yes, very well.  As indicated, there will be a grant of special leave to appeal in this matter.  Those who instruct you gentlemen are invited to obtain the directions with respect to the progress of the matter from the Registry.

The Court will now adjourn briefly in order to set up the video link to Sydney for the next application.

AT 12:46 PM THE MATTER WAS CONCLUDED