Commonwealth of Australia (As Represented BY the Department of Infrastructure and Regional Development) v Shirvington (No.2)
[2015] FCCA 1984
•22 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) v SHIRVINGTON (No.2) | [2015] FCCA 1984 |
| Catchwords: ADMINISTRATIVE LAW – Commonwealth tenancy dispute – interlocutory application – application for recusal. |
| Legislation: Federal Circuit Court of Australia Act1999 (Cth), s.13 |
| Cases cited: Antoun v The Queen (2006) 80 ALJR 497 Barakat v Goritsas (No 2) [2012] NSWCA 36 Commonwealth v Brizzolara [2015] FCCA 1275 Commonwealth v Hevers [2015] FCCA 1814 Commonwealth v Rigney [2015] FCCA 1274 Commonwealth v Shirvington [2015] FCCA 1270 Commonwealth v Tucev [2015] FCCA 1276 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Webb v The Queen (1993) 181 CLR 41 |
| Applicant: | COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) |
| Respondent: | KEN SHIRVINGTON |
| File Number: | SYG 648 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 21 July 2015 |
| Date of Last Submission: | 21 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Doyle & Mr D.W. Rayment |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Counsel for the Respondent: | Mr P. King |
ORDERS
The respondent’s application in a case filed on 30 June 2015 be dismissed.
The costs of the application are reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 648 of 2015
| COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) |
Applicant
And
| KEN SHIRVINGTON |
Respondent
REASONS FOR JUDGMENT
Background
Mr Shirvington is a tenant of premises owned by the Commonwealth which is located in an area in which the Commonwealth proposes to develop an airport. The Commonwealth has brought proceedings against Mr Shirvington seeking an order that his tenancy agreement be terminated and that there be an order that Mr Shirvington give vacant possession of the premises to the Commonwealth.
There are many such applications being brought by the Commonwealth that are currently listed before me. I will refer to them generally as “the airport matters”. Mr Shirvington and a respondent to one other of the airport matters, Mrs Rigney, now ask me to recuse myself on the basis of a reasonable apprehension of bias. Their applications were heard together and each applicant relied on the same evidence and arguments. While there are many bases for the application, they generally fall into two categories: first, the way in which I have conducted interlocutory matters in the airport matters; and secondly, what might be loosely called the institutional arguments.
Given that a number of the airport matters have been listed for hearing, I have heard the application for recusal before commencing any substantive hearing in them.
The principles to be applied in an application for recusal on the basis of apprehended bias are easy to state but not necessarily easy to apply. The relevant question 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: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 437 [31] per Gummow A-CJ, Hayne, Crennan and Bell JJ.
That test involves two elements: first, it requires identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. Secondly, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 [8]. In other words, it is incumbent upon the party seeking recusal to identify the issues which will need to be determined, the conduct which gives rise to the apprehension and the logical connection between the conduct and the issues: Barakat v Goritsas (No 2) [2012] NSWCA 36 at [12] per Basten JA, Young JA and Sackville AJA agreeing.
There are at least four distinct, although sometimes overlapping, main categories of cases involving the apprehension of bias: first, disqualification by interest (whether pecuniary or otherwise); secondly, disqualification by conduct including published statements (whether that be in the course of or outside the proceedings); thirdly, association which often overlaps with the first; and fourthly, extraneous information which consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias: Webb v The Queen (1993) 181 CLR 41 at 74 per Deane J. The applicants on the application rely on the second and fourth of these categories.
The first category of matters relied upon by the applicant involves the way in which I have conducted this and other airport matters. The first particular matter involves consent orders made in some of those matters. Mr King, who appeared for the applicant on the application, argued that the way in which the Court received consent orders between the parties in those other airport matters demonstrated an apparent willingness to “get involved with the Commonwealth case to assist its progress contrary to the Court’s governing Act … and a preparedness to make orders against respondents in their absence”. His written submissions stated, without reference to any evidence, that on 26 March 2015 the Court convened for one hour, that no respondents appeared except for a Ms Wong for the respondents in one matter, and that the Court invited the Commonwealth to simply provide consent orders to the judge so that the orders could be made. The transcript of the proceedings in the matter of Commonwealth v Lukic (SYG661/2015) on 26 March 2015 includes the following passage:
Mr Rayment: … We’re running a tiny bit late, but the good news is that in the matters of Saggus and Gauci we have, I believe, consent orders which will finally dispose of the proceedings. And intention, I imagine, will be to hand those up collectively with a number of other consent matters probably this Monday, if not before.
Before we proceed with the substituted service application that remains, it may be as a housekeeping matter appropriate to enquiry (sic) of your Honour as to whether your Honour would prefer that the orders were put before your Honour on Monday, rather than administratively with the registry. The reason that we raised is concern is simply that it would be the first time that the registrar would be confronted with the prospect of making orders in chambers under this legislation, and it just seemed potentially to be something which might cause complication in that respect, and it may be more expedient.
His Honour: If you bring them, I’m happy to deal with them then.
The transcript shows that I then proceeded to deal with an application for substituted service. It is obvious that in such an application the relevant respondent would not have been notified. If they had been notified there would have been no need for the application. In those circumstances, the absence of a party cannot give rise to any inference that the Court was willing simply to do the Commonwealth’s bidding. Thus, the fact that there was no notification of the respondent, Mr Lukic, cannot have a logical bearing on any future decision to be made in respect of his case.
Mr King argued that proceeding in the absence of the parties who had signed consent orders and in fact dealing with consent orders in chambers was inconsistent with the Court’s obligation under s.13 of the Federal Circuit Court of Australia Act1999 (Cth) (“FCCA Act”) and the principle of open justice. That argument is unsustainable. Section 13(4) of the FCCA Act specifically contemplates the Court making orders in chambers. It is an event that happens in the ordinary course of the administration of justice in this country. Indeed, to contemplate, as the applicant’s submissions appear to do, that the Court must in every case conduct a hearing in open court to determine matters that have been resolved between parties is inconsistent with the proper administration of justice and in particular with the proper allocation of court resources.
Mr King also argued that all of the consent orders were bad. By this submission I understand him to rely on the fact that in some of the airport matters in which consent orders were entered the Commonwealth later consented to the setting aside of those orders. It is difficult to see how that fact can mean first, that the consent orders were “bad”, and secondly, how that has any logical bearing on the possibility that I might not bring an impartial mind to the disposition of the issues that remain between the parties. If Mr King was suggesting that I was aware that the consent orders were in fact obtained fraudulently or by duress, he has not produced any evidence to support that allegation and I reject it.
Another aspect involving consent orders is that several applications to set aside consent orders have been rejected by me. One of those was in the matter of Commonwealth v Tucev [2015] FCCA 1276. In that case Mr Tucev had signed consent orders which were then entered. Mr Tucev applied for an order under r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) to set aside those orders on the basis that the Commonwealth had applied undue pressure on him to sign the orders. Mr King argues that I made findings of fact which went to the credibility of Mr Tucev. Even if that were the case, it is difficult if not impossible to understand how that might affect the possibility of me bringing an impartial mind to the resolution of the matters relevant to Mr Shirvington and the other applicant for refusal. As Mr Tucev’s initial application to set aside consent orders was unsuccessful, there remains no live issue in respect of the facts that he might bring to bear in his case. Indeed there is no case. In any event, Mr King is simply wrong to say that I made any finding relating to the credit of Mr Tucev.
Mr King’s argument relies upon a partial extraction of one of my findings in that case without any regard to the whole of the finding. He relies on the following part at [17] of my judgment in that case: “What is certain is that neither Ms Kennison nor anybody else on behalf the Commonwealth said those things or anything else...”. The part which he omitted from his submissions was what followed immediately from those words namely: “… which might amount to the application of pressure to sign consent orders to Mr Tucev.” Those words reveal that I made no findings relating to credit but was in fact determining that on the basis of the truth of what Mr Tucev had said.
The applicant also relied upon my judgment in the case of Commonwealth v Brizzolara [2015] FCCA 1275. Mr Brizzolara said that he had been subject to undue pressure in signing the consent orders. This pressure, according to his evidence, was applied during a conversation with an agent of the Commonwealth, Ms Pam Kennison. Mr Brizzolara had, before that conversation received a letter from the Commonwealth stating, amongst other things, “it is important that either you or your legal representative attend Court at 9:30am on Friday, 20 March 2015.” The relevant parts of my judgment are:
[15]It seems odd to me, without further explanation, that a person who had received a letter in the above terms would nevertheless go and see a real estate agent or property manager in connection with legal proceedings. It seems more than odd to me and I do not accept, that even if such a person were to see a property manager, that that manager would make statements so entirely inconsistent with the tenor of the letter. For instance, there is no rational basis in any objective evidence before me as to why the property manager would say in respect of the consent orders “you have to sign them so I can fax them off to the solicitors this very day”.
[16]Such a statement is so far at odds with the letter served upon the Brizzolaras that I find that it did not occur. Indeed, I am not satisfied that any of the conversations deposed to by Mr Brizzolara took place. Another reason for which do not accept Mr Brizzolara’s evidence, although this is of less concern, is his evidence that his wife would not sign but that he would have to. This evidence flies in the face of the facts that not only were the consent orders signed by both Mr and Mrs Brizzolara but that Mrs Brizzolara did not deny that she signed them. In that respect I note that her affidavit had the following paragraph which had a line drawn through it and initialled: “I did not sign the consent, only my husband Paul signed the consent without my knowledge.”
Unlike Mr Tucev, Mr Brizzolara has not sought leave to appeal from my judgment. That means that that there remain no live issues in his case. It has been resolved by consent. In any event, my findings in that case could have no logical bearing upon the possibility that I might have prejudged the applicants’ cases. My judgment in the case involved no finding concerning the credit of Mr Brizzolara but, rather, a rejection of his evidence that a certain conversation took place. That rejection was not based on any finding of credit but on an analysis of all of the evidence before me. It is important to note that the conversation in question forms no part of the issues that are alive in the applicants’ cases. Neither Mr Shirvington nor Mrs Rigney were parties to, or subject of, that conversation and the agent in question, Ms Kennison, is not a witness in their applications.
Mr King’s written submission was that I had simply and clearly rejected the tenor of the evidence in the cases of Brizzolara and Tucev as a matter of credit and that if I “can do it once, or twice, whether or not with good cause (in fact there was no good cause) it is clearly possible (I) may do it again.” As I have said, my findings in those judgments were not matters of credit. Even if they were, this submission is misguided. The question is not whether I might make another finding of credit but whether, because I have done so in the past, I might not bring an impartial mind to the question of credit when it arises in the substantive cases. It is always possible for a judge to make findings of credit after he or she has heard all of the evidence in proceedings. That possibility does not give rise to any reasonable apprehension of bias.
The next two matters involve my determination of the applications by both Mr Shirvington and Mrs Rigney for interim injunctions. Mr King argued that in the matter of Commonwealth v Rigney [2015] FCCA 1274, I had completely rejected the tenor of Mrs Rigney’s evidence and accepted “anything that is said on the part of the Commonwealth to support its case”. These assertions have no basis. Mr King has, once again, relied upon only part of my judgment and taken it out of context. The relevant paragraphs in the judgment are:
[11]There is, simply put, no evidence whatsoever that there is any risk that the Commonwealth will interfere with any of Mrs Rigby’s rights as a tenant such as taking steps either to terminate Mrs Rigney’s tenancy or to remove her and her possessions from the property. The highest that Mrs Rigney’s own evidence goes is that she is afraid that she might not be able to obtain alternative housing. The evidence of the news article not only disclose is no basis for the assertion that utilities and power will be turned off and local roads will be closed but also does not relate that assertion in any way to Mrs Rigney’s property. I give that evidence no weight.
[12]In addition, the basic premise of Mrs Rigney’s application is entirely inconsistent with the approach taken by the Commonwealth in respect of her tenancy. These proceedings have been instituted and are being pursued by the Commonwealth on the basis that her rights are regulated by the Residential Tenancies Act 2010 (NSW). In particular, they are framed on the basis that her tenancy cannot be terminated other than by order of the Court.
(Emphasis added)
These paragraphs reveal that I did not reject Mrs Rigney’s evidence but simply found that there was no basis in it for the apprehension that the Commonwealth would, in the face of proceedings brought by it in this Court, act inconsistently with its obligations under the agreement with Mrs Rigney in concerning her occupation of the premises.
In respect of the application for an injunction by Mr Shirvington (Commonwealth v Shirvington [2015] FCCA 1270), Mr King argued first, that at the “hearing on 1 May 2015 the primary judge read out a list of issues and placed the respondents’ interlocutory application at the top of a long list on the basis that ‘This will not take long’.” The transcript of the proceedings on 1 May 2015 reveals that I did not say those words. In any event, without referring to what the other matters in the list involved, it is impossible to say that the way in which I dealt with the business of the Court on that day supports the allegation of an apprehension of bias. In any event, the statement as to the length of time that an argument might take on an interlocutory application does not, without more, give rise to any apprehension of bias. The length of time of an application is different to its outcome.
The facts relied upon by Mr King stand in stark contrast to those considered by the High Court in Antoun v The Queen (2006) 80 ALJR 497. In that case, when the trial judge was informed that there would be an application for no case to answer on the following day he replied, without having heard any argument: “I see, well that application will be refused. So how long then will the defence case take?”
Mr King also relies upon findings made by me in Mr Shirvington’s application. In that case I said:
[2]Mr Shirvington relies upon two affidavits for the proposition that he has a reasonable apprehension that breaches of those rights are likely to occur if an injunction is not granted. Included in those are statements in an affidavit of the 17 April 2015 that he had been informed by his daughter Simone, and other residents of Badgerys Creek, that a property manager for the Commonwealth had said to residents in the area regarding present evictions from the Badgerys Airport area owned by the Commonwealth:
… if you do not sign to collect your paperwork or are not out by 16 June, the Commonwealth and its agents will blacklist you and you will not be able to rent another property.
[3]Mr Shirvington says he was also informed by another person that:
If you do not vacate by 16th June, the Commonwealth will cut power and water to the properties and stop garbage removals by the local government.
[4]In another affidavit, Mr Shirvington says that he is disturbed about the amount of building materials being dumped on local roads and that asbestos had been left in damaged houses and that a number of residents in the area had received threats from the property manager to whom I have just referred, including:
If you do not go voluntarily you will all be worse off if you do not cooperate by leaving now, you will be stopped from getting any lease in this part of Sydney.
[5]Against that material is the plain fact that the Commonwealth has brought these proceedings in this Court seeking the determination of long term tenancies in the area in which Mr Shirvington is a tenant of a Commonwealth property. One of the matters that the Court has been asked to determine is the date on which vacant possession is to be given in which, according to s.94(4), is to be no earlier than 90 days after the date the order was made. Although there is some dispute about the jurisdiction of this Court under the Residential Tenancy Act, for the purposes of the present application I will assume that I do have such jurisdiction and certainly that is the assumption that appears to be the basis of the application by the Commonwealth.
[6]It is on the basis of that that I see that there is no real, certainly no imminent threat that the Commonwealth will exercise any of its rights as the landlord of the property upon which Mr Shirvington is the tenant which is inconsistent with his rights under the Residential Tenancies Act. For that reason alone, I would refuse to grant any interim injunction.
These findings involve no issue of credit on the part of Mr Shirvington. Further, the issue resolved by me in that application is no longer a live one. Assuming for present purposes that the Court has jurisdiction in these matters, what remains in issue is whether the Court will exercise its discretion under s.94 of the Residential Tenancies Act 2010 (NSW) and, if it does so what is the date upon which an order for vacant possession will be made. Regardless of the breadth of the considerations that may be relevant to those issues, they cannot include any apprehension by either Mr Shirvington or Mrs Rigney that the Commonwealth might interfere with their rights under the respective tenancies. For that reason there is no logical connection between any of my findings in their interlocutory applications and the feared deviation from the course of deciding the case on its merits
The final matter relied upon by the applicants for recusal was a statement by me to Mr King during the argument yesterday. That statement was:
I want you to finish all of your submissions by 1 o’clock. If you can point me to the cases – I have read them, I will re-read them if you point them to me, and then I want you to take me to the material to show me where the issues arise. You can do that by 1 o’clock. We have many other matters to do this week.
The context of the comment was an inquiry of me as to how long Mr King would take to complete his oral submissions and then a direction by me that he do so by 1pm. That direction was subsequently amended so that Mr King was able to make further submissions after the lunch adjournment. In any event, the implication said to have arisen from my comment was that I had already made up my mind on the recusal application. That implication may arise if the only matters before me were the substantive matters involving Mr Shirvington and Mrs Rigney. I accept that if that were the case, in the absence of any other contextual explanation, a fair-minded lay observer could draw the inference that I had determined to hear those substantive matters and that, in turn, implied that I was going to reject the recusal applications. I note in passing that the likely result of that would be that I could not hear an application to recuse myself.
However, the fact is that there were many other matters listed before me yesterday. Amongst those were: an application by Mr Tucev to set aside the consent orders made on 30 March 2015, another application of a similar nature, six applications by the Commonwealth to amend its substantive applications, and a number of substantive applications. Mr King appears as counsel in all of those matters. Any fair-minded lay observer cognisant of those matters (as he or she would be) would not draw the inferences upon which Mr King relied. For that reason my comments do not support the application for recusal.
For all of those reasons, no aspect of my conduct in relation to the matters of Shirvington and Rigney or any other airport matter supports the conclusion that I might not deal with the issues on their merits.
The next category of issues is what was described by Mr King as institutional impartiality although I think that he meant partiality. This category had two aspects: first, the fact that all of the airport matters are in my docket; and secondly, what I will describe for the moment as the connection between the Court and the Attorney-General’s Department.
The complaints in respect of the fact that I have the airport matters in my docket are that it is unfair to impose such an unreasonable burden on one judge, and that it is highly unusual for one judge “as a matter of convenience to the Commonwealth” to run a number of cases on a particular issue. Mr King suggested that these matters reveal that the Court is being used as a convenient clearinghouse for the Commonwealth against people who are stripped of their protection that they would otherwise enjoy under State law before “one judge who it appears as a possibility stands ready to do everything asked by one side of the record”. To the extent that this submission relies upon my earlier conduct, it is rejected for the reasons I have already given. To the extent that it relies upon the fact that all of the airport matters have been assigned to my docket, it is misguided.
The fact that I am to determine a large number of matters that raise similar issues is convenient not only to the Commonwealth but also to each of the respondents to the application and to the allocation of the Court’s resources. For example, it has enabled Mr King’s clients to have all of their concerns raised in an expeditious and efficient manner. I have no doubt that if the other judges in this Court had any of the airport matters in their docket they would deal with them efficiently. However, that would require each of the parties to appear at different times and in different Courts, potentially in different parts of the city, for the purposes of directions, interlocutory applications, and ultimately final hearings. In light of that, it cannot be said that the mere fact that one judge is charged with the conduct of the airport matters is simply a matter for the convenience of the Commonwealth.
Mr King argues that “even in migration cases different judges sit in different cases”. I am not really sure what that means. Migration cases are different to the airport matters in a number of respects but most particularly in their number. It is a matter of public record that in the last five months I alone have heard and determined some 60 migration cases and that approximately 168 remain in my docket.
Mr King also relies on the fact that two applications brought by tenants of the Commonwealth in which he appears were transferred from the docket of Judge Street “without consent or the consultation with the respondents”. Again, I do not understand the argument. If it is based upon any suggestion that the removal of those matters from the docket of Judge Street to my docket was upon the application of the Commonwealth without notice to the applicants in those matters, there is no evidence of it and I reject it. In any event, the submission is somewhat ironic given that the applicants had made an application that Judge Street recuse himself for reason of an apprehension of bias.
Mr King also relies on the fact that I have heard evidence and argument in one airport matter (Commonwealth of Australia v Hevers (SYG651/2015)) and says that the Court should stay any hearing in these matters until the decision on the merits in that case is given so as to give the respondents their opportunity to exercise their right to object to hearing the matter with the knowledge of the basis upon which that decision is made. He relies on the principles of procedural fairness and says that he and his clients are not aware of the evidence that was given in that case nor of the arguments that were made. There is no evidence to support the last of these assertions and it is rejected. The hearing in Hevers was held in open court on 20 July 2015. I simply do not know whether there was anybody in the current respondent’s interest who was there on the day or whether any or all of them have access to the transcript of that hearing.
In any event, the suggestion that there might be some element of procedural unfairness has nothing to do with any apprehension of bias. Mr King did not point to anything in connection with the Hevers case which might support such a reasonable apprehension but only relied upon the fact that I have heard argument and evidence in it. In my view, it is more appropriate for me not to make a decision in that case before hearing the evidence in this case. In order to make a decision in that case I will have to make an assessment of the Commonwealth’s evidence which may have some significant similarities to its evidence in this case. Clearly enough the effect of that evidence, at least to the extent of the similarity, is an issue both in the Hevers case and in the these applications. Thus, determination on that issue in the other case could possibly give rise to an apprehension of bias. Of course, that apprehension need not necessarily be on behalf of the respondents in these cases but may be one felt on behalf the Commonwealth. Whether that be the case is a matter of pure hypothesis because I have not yet determined any factual issues in any of the substantive airport matters.
The next matter in the category of institutional partiality arises from a statement made by the Commonwealth Attorney-General in connection with the making of the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015. For a discussion of the effect of that instrument see Commonwealth v Hevers [2015] FCCA 1814. The following statement appeared in the explanatory statement issued by the Attorney General in connection with that instrument:
The Instrument was developed in consultation with the FCC and relevant departments likely to be parties to Commonwealth tenancy disputes within NSW. The Office of Best Practice Regulation has been consulted and has advised that no Regular treat Impact Statement is required for the Instrument.
I take “FCC” to be a reference to this Court.
Mr King argued that this statement gave rise to the possibility referred to in Antoun at [83]. There, Callinan J, having set out a passage from the joint judgment in Ebner, said:
[83]It should be noted that the test as stated emphasises that a possibility, that is relevantly to say, the appearance of the possibility of an absence of an impartial mind on the part of the judge, may lead to disqualification. Their honours also make it clear that the test is not involve, or require an inquiry into the facts or matters which brought the apprehended state of mind of the judge to one of apparent bias. It follows that the fact that the case may not only at the time, but also in retrospect, seem to be a strong one, indeed a very strong one, does not absolve the judge from giving it a fair hearing, and attending carefully and open-mindedly to the submissions of the parties made at appropriate times.
In my view, the fact that there was some consultation with this Court prior to the making of the Instrument has no logical bearing on the possibility that any member of this Court might not give a fair hearing and attend carefully and open-mindedly to the submissions of the parties and the evidence adduced by them in connection with the Instrument. Not only is it common in any parliamentary democracy for there to be consultation with interested parties prior to the drafting of legislation including legislative instruments, but also the content of the consultation that appears to have taken place in this instance is unknown. The mere fact that there has been some consultation cannot support the inference put forward by Mr King that this Court is allowing itself to act as a pawn for the executive.
In a similar vein, Mr King relied upon an article published in the Sydney Morning Herald on 20 July 2015 which states, amongst other things, that this Court risks losing its registries and at least six judges if people do not continue to pay more money to divorce their partners. Mr King argued that the party should not be adversely affected by such revenue considerations as this appears to affect both the impartiality and independence of the Court: see Forge v Australian Securities and Investments Commission (2006) 228 CLR 45. In that case, it was argued that the appointment of acting judges to the Supreme Court of New South Wales was invalid as was the law pursuant to which the appointment was made because of the effect of such an appointment on the institutional integrity of that Court.
As Gleeson CJ noted at [25], in a perfect world an executive government would appoint exactly the number of permanent judges required to enable all courts to operate efficiently and effectively, all courts would have consistent and predictable caseloads and so there would not be temporary shortages of resources, there would be no need for delay reduction programs, and that the size of courts would expand to meet litigious demands but that no such world exists. Thus, the issue of the resources of this Court must be considered in the context of an imperfect world.
Considered at the level of generality at which this argument was put, I do not accept that the apprehension concerning the resources of this Court referred to in the newspaper article relied upon by the applicants for recusal provided any logical connection with the possibility that I might not bring an impartial mind to the resolution of the issues between the parties. First, the plain fact is that there are adequate resources to determine this case. Secondly, the newspaper article did not identify the particular parts of this Court that might suffer loss of registries and/or inadequate appointment of judges. I understand the reference in the article to paying money for divorces as relating to the recent increase in the filing fees for applications for orders for divorce in this Court. Divorce applications are heard and determined by judges who hear family law matters and not by judges who hear general federal law matters such as myself. Thirdly, the real question raised by the article and Mr King’s argument is what level of resources with there be a compromise of the institutional integrity of the Court? A similar question arose in the case of Forge and, as noted there by the plurality at [90], there can only ever be an arbitrary answer given to it. For those reasons this argument is rejected.
Conclusion
For all of those reasons I find that a fair-minded lay observer would not reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question I am required to decide. The application for recusal is dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 22 July 2015
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