Coleman & Hindle and Ors (Disqualification)

Case [2010] FamCAFC 29

FAMILY COURT OF AUSTRALIA

COLEMAN & HINDLE AND ORS (DISQUALIFICATION) [2010] FamCAFC 29

FAMILY LAW - APPEAL – COURTS AND JUDGES – DISQUALIFICATION – In an appeal from the Family Court of Australia – Whether the judge erred in failing to disqualify himself for apprehended bias – Where the proceedings have a complex history – Where the appellant is self-represented and has been since the inception of proceedings – Where the reasons for judgment and transcripts of proceedings do not reveal an apprehension of bias – Where the judge showed restraint and considerable effort in dealing with a difficult litigant – Where the orders made were correct on the evidence and entirely proper – Appeal dismissed
FAMILY LAW - APPEAL – APPLICATIONS IN AN APPEAL – Where the appellant filed two applications after the hearing of the appeals and judgment was reserved – Application to adduce further evidence – Where the material sought to be adduced would not demonstrate the orders under appeal were erroneous – Application for leave to issue subpoena – Where the final hearing has not occurred – Where such an application can be renewed before a trial judge – Applications dismissed
FAMILY LAW - APPEAL – COSTS – Whether it is appropriate to make a costs order – Where the proceedings have been wholly unsuccessful – Where litigation has been protracted in this Court and state courts at considerable cost to the public purse – Where the Appeal Books for the second appeal were provided by the Court – Appellant ordered to pay costs

Child Protection Act 1999 (Qld)
Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Family Law Rules 2004
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
C and C (1996) FLC 92-651
CAO v Department of Child Safety & Ors [2009] HCASL 259
CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Goode and Goode (2006) FLC 93-286
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716
Johnson v Johnson (2000) 201 CLR 488; Johnson v Johnson (No 3) (2000) FLC 
93-041
Johnson v Johnson (No 1) (Bias Issue) (2000) FLC 93-039
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Re JRL; Ex Parte CJL (1986) 161 CLR 342
Strahan & Strahan (Disqualification) (2009) FLC 93-414
APPELLANT: Ms Coleman
1ST RESPONDENT: Mr Hindle
2ND RESPONDENT: Ms Hindle
3RD RESPONDENT: Department of Communities  (Child Safety Services)
INTERVENER: Mr Coleman
INDEPENDENT CHILDREN’S LAWYER: Mr Carter
FILE NUMBER: BRC 5431 of 2008
FIRST APPEAL NUMBER: NA 42 of 2009
SECOND APPEAL NUMBER: NA 78 of 2009
DATE DELIVERED: 5 March 2010
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Finn, May & Thackray JJ
HEARING DATE: 18 November 2009
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 29 April 2009
LOWER COURT MNC:

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AGLC
Coleman & Hindle and Ors (Disqualification) [2010] FamCAFC 29
Case
[2010] FamCAFC 29
Decision Date

CaseChat Overview and Summary

Coleman & Hindle and others were involved in a dispute where the grandmother appealed certain orders made by the court. The nature of the dispute involved procedural matters, including the alleged bias of a registrar and the handling of death threats against the registrar. The appeal was heard in the Supreme Court. The central legal issues the court had to decide were whether the trial judge erred in not substituting the registrar and whether there was perceived bias on the part of the registrar.

The court examined the principles governing the review of interlocutory orders, emphasizing the need for appellate courts to exercise caution in such matters. The court referred to several precedents that outlined the criteria for reviewing such decisions, highlighting the importance of procedural fairness and the potential for substantial injustice if the appellate court intervenes too readily. The court concluded that while injustice resulting from the order is generally a relevant consideration, it is not the sole determinant. The court found that the appellant had not demonstrated an error of principle or a substantial injustice warranting interference with the trial judge’s decision.

The appeals were dismissed, and the appellant was ordered to pay the costs of the respondents and the Independent Children's Lawyer as agreed or assessed. The reasoning focused on the procedural nature of the orders and the appellate court's limited role in reviewing such decisions without clear evidence of error or substantial injustice.

Orders

Orders of the court

1.

The appeals NA 42 of 2009 and NA 78 of 2009 are dismissed.

2.

The appellant’s application in an appeal filed 12 November 2009 is dismissed.

3.

The appellant’s application in an appeal filed 4 December 2009 is dismissed.

4.

The appellant’s application in an appeal filed 17 February 2010 is dismissed.

5.

The appellant pay the costs of the second and third respondents and the Independent Children’s Lawyer of and incidental to the appeals as agreed and failing agreement, as assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As to those orders related to the applications of the grandmother, not being the contravention applications, they are in the category of procedural orders of an interlocutory nature. It is useful to refer to Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170. That decision concerned an appeal from an order for an injunction, but the principles outlined are applicable to appeals from interlocutory decisions generally. Gibbs CJ, Aickin, Wilson and Brennan JJ at 177 said:An interlocutory order for an injunction is a matter of practice and procedure. See McHarg v. Universal Stock Exchange Ltd.; Minister for The Army v. Parbury Henty and Co. Pty. Ltd.; White v. White.Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd.; on the other hand, De Mestre v. A.D. Hunter Pty. Ltd.. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.):‘... I am of the opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.’See also Brambles Holdings Ltd. v. Trade Practices Commission; Dougherty v. Chandler. It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration. (footnotes omitted, emphasis added) In an amended notice of appeal filed 9 July 2009, the grandmother appeals against the orders made on 29 April 2009. She lists twelve grounds of appeal. Ground 1 is:His Honour, on 29th April 2009, erred in not making an order relating to having Registrar Turner removed as the “Magellan Registrar” and substituting another Registrar, pending investigations by Australian Federal Police over alleged “Death threats” on Registrar Turner’s voice-mail that purported to be made by the Appellant. The Appellant is of the belief that “Perceived Bias” exists towards the Appellant by Registrar Turner;

Ratio Decidendi

Legal Principle Established

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