Cullen and Cullen
[2018] FCCA 851
•19 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CULLEN & CULLEN | [2018] FCCA 851 |
| Catchwords: PRACTICE & PROCEDURE – Application for recusal based on long chains of email correspondence of the Father to the Independent Children’s Lawyer (“the ICL”) and to Chambers containing vitriolic abuse directed towards the Judge and the ICL – Father’s evidence at trial was that he re-canted these statements and stated that the Judge was [now] a “good bloke” and a person of integrity – questions concerning the ability of a litigant to use that person’s own actions to found a recusal Application – risk of “gaming” the system of the Application was to be granted – questions about the evidentiary foundation for the Application in the light of the Father recanting his earlier views – insufficiency of Father’s submissions which do not refer to any authority post the High Court’s classic statements regarding apprehension of bias in Ebner v Official Trustee in Bankruptcy – as its author the Father was clearly on notice of the offensive material he sent to the Court therefore consideration also of the maxim of and principles relating to ex turpi causa non oritur actio – Mother’s material filed in March 2017 referred to and annexed some of the offensive material – Father’s solicitors notified by ICL of proposed use of the offensive material prior to and at the commencement of the trial – application for recusal foreshadowed only in the middle of day 3 of the trial – questions of “waiver” – considerations regarding costs including indemnity costs and whether the Father’s solicitors should pay costs. |
| Legislation: Family Law Act 1975 (Cth), s.117 |
| Cases cited: Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd (2008) 66 ACSR 325 Disqualification for Bias, (J. Tarrant) (Sydney: The Federation Press, 2012) |
| Applicant: | MR CULLEN |
| Respondent: | MS CULLEN |
| File Number: | CAC 1792 of 2015 |
| Judgment of: | Judge Neville |
| Hearing date: | 5 April 2018 |
| Date of Last Submission: | 5 April 2015 |
| Delivered at: | Canberra |
| Delivered on: | 19 April 2018 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Mr O’Sullivan |
| Solicitors for the Applicant: | O’Sullivan Legal, Sydney |
| Counsel for the Respondent: | Ms M Davis |
| Solicitors for the Respondent: | NSW Legal Aid, Wagga Wagga |
| Counsel for the Independent Children’s Lawyer: | Mr C Wilson |
| Solicitors for the Independent Children’s Lawyer | Friedlieb Byrne, Wagga Wagga |
THE COURT ORDERS THAT:
The Father’s Recusal Application filed on 7 March 2018 be dismissed.
The Father is to pay the costs of the Mother in the fixed amount of $3,500, within 28 days from the date of these Orders, that is by close of business on 17 May 2018.
The Father is to pay the costs of the Independent Children’s Lawyer in the fixed amount of $5,064, within 28 days from the date of these Orders, that is by close of business on 17 May 2018.
IT IS NOTED that publication of this judgment under the pseudonym Cullen & Cullen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1792 of 2015
| MR CULLEN |
Applicant
And
| MS CULLEN |
Respondent
REASONS FOR JUDGMENT
Introduction
After a 2½ day hearing in late February in Wagga Wagga, the substantive parenting matter between the parties in relation to the Father’s time with his 4 daughters currently stands adjourned “part heard.”
Around midday of the third day of the trial, Counsel for the Father foreshadowed that there may be a recusal Application arising out of an Affidavit filed by the Independent Children’s Lawyer (“the ICL”) which annexed to it multiple abusive emails from the Father that were sent to the ICL and to the Court during a period of time when the Father was not legally represented. Orders were then made for any such Application to be filed within 14 days.
The recusal Application was filed on 7th March 2018. In every relevant respect, in my view (as well as in the respective views of the ICL and the Mother) it should never have been filed. What follows are the reasons why it was doomed to fail, why it must be dismissed, and why a costs Order of some significance must follow against the Father. Indeed, it was a near run thing that the costs Order was not directed against the Father’s solicitors.
For immediate purposes, it is sufficient to note here that one of many reasons for the deep regret about the doomed Application is that the entire afternoon that was required to deal with it could otherwise have very likely been used to advance, or maybe even to finish, the remaining evidence in the substantive proceedings, with submissions to be attended to in writing. Given how oppressed the Court is in the lack of readily available hearing time, which of course is well known to practitioners, ill-considered, ill-prepared and inappositely run Applications like this only add to the waste of precious public resources of the Court.
Added to this is the fact that the Applicant Father remains acutely short of being able (or permitted) to spend time with his daughters, not least because his time at the local “Contact Centre” has been cut because that Centre has been less than impressed with the Father’s conduct and ceased his time at the Contact Centre. Thus, by bringing this Application it has meant that the Court’s capacity to deal with the substantive parenting Application remains in abeyance. Respectfully, to say that the Application was ill-advised would be, in my view, an understatement for the reasons that follow.
Although articulated formally as a recusal Application based on the Court’s repeated exposure to the Father’s protracted abusive and reactionary email correspondence directly to Chambers over a period of approximately one year (in 2015 and 2016), and which (as earlier stated) was copied to the ICL, during oral submissions there was the occasional hint or suggestion that the recusal Application might also be founded upon comments made by me during the Father’s evidence in relation to these voluminous emails. This sotto voce claim of apprehended bias was never formally articulated.
Also as noted earlier, during the hearing, the Father strongly disavowed the content of the offending emails and stated that he now considered me to be “a good Judge,” “a man of integrity” and “a good bloke.” Indeed, the Father apologised to the ICL and to the Court for his previous conduct.
For more abundant caution and for the sake of completeness, because the formal Application was said to be based on apprehension of bias due to the Court reading repetitious abusive emails but also because of the suggestion (which was never fully formulated) of possible comment from the Bench during the trial, the outline of principle later in these reasons necessarily covers both aspects – repeated exposure to the abusive emails and comments made during the hearing.
Factual background
Formally, the recusal Application was supported by an Affidavit, filed 7th March 2018, sworn by a solicitor (Ms Samira Friis) in the employ of the Father’s solicitors. As far as the Court is aware, Ms Friis was not at the hearing in Wagga Wagga, in which case her affidavit should have been sworn on the basis of “information and belief.” Why the solicitor who instructed during the trial (Mr O’Sullivan) did not swear the Affidavit, which would have been on the basis of his direct knowledge of what transpired during the hearing and otherwise, was not explained. Be that as it may, in that very brief Affidavit, Ms Friis deposed that she is a solicitor in the employ of Mr O’Sullivan who assists him “with the day to day carriage of [this] matter.” She annexed a copy of the Orders made on 21st February 2018. She further deposed (par.3): “On 21 February 2018 an oral recusal application was made by Counsel for the Father.” This is incorrect.
The fact was that Counsel for the Father said that he foreshadowed a possible recusal Application and that he would have to seek instructions about it. Indeed, this is precisely what Notation C in the Orders of 21st February stated.[1] It was for this reason that the Orders of 21st February 2018 were made requiring any such Application to be filed within a specified time, namely 14 days. Therefore it is incorrect to depose, as Ms Friis did, that the recusal Application was made by Counsel for the Father on 21st February 2018.
[1] Notation C stated: “Counsel for the Respondent [Father] indicated that there may be a Recusal Application.” See also Transcript (21st February 2018) p.330 ff. Hereafter “T” followed by page number.
Apart from the general discussion that took place between Counsel for all the parties and the Bench on 21st February, which was only after the Court had made procedural Orders for the future conduct of the matter, Counsel for the Father foreshadowed a possible recusal Application, and then Ms Friis’ Affidavit, as a matter of evidence there was (and remains) nothing before the Court to support the Father’s recusal Application. Moreover, there was reasonably extensive questioning of the Father during the trial about the offending email messages to which his experienced Counsel did not object.[2]
[2] See T 315 – 328.
For completeness, it is perhaps apposite to note that the comments by Counsel for the Father of possibly making a recusal Application, subject to obtaining instructions, took place only after directions had been made for the future conduct of the matter, including finalising the extensive cross-examination of the Father. As an observation only at this stage, the indication of a possible Application came, on any view, “very late in the day” so to speak.
Following the Application being filed, directions were made on 7th March 2018 for the filing of written submissions. Those submissions are set out in the next section of these reasons.
The Applicant Father’s Written Submissions
The Applicant Father filed written submissions on 3rd April 2018.
Those submissions were as follows (emphasis added):
1) By Application in a Case filed 7 March 2018, the Father seeks an order that Judge Neville recuse himself from continuing to hear the proceedings for final parenting orders in respect of the children of the marriage, [W], born (omitted) 2003, [X], born (omitted) 2004, [Y], born (omitted) 2006 and [Z], born (omitted) 2008.
2) The hearing had commenced on 19 February 2018 in the Federal Circuit Court at Wagga and continued until lunchtime on 21 February 2018.
3) On 20 February 2018, an Affidavit of the Independent Children’s Lawyer, Ms Linda Hansen sworn 13 February 2018 was filed in Court and a copy provided to the Father’s legal representatives for the first time. Annexed to this Affidavit was voluminous correspondence, comprising some 173 pages of exchanges between the Father and the Independent Children’s Lawyer and the chambers of Judge Neville.
4) The legal representatives for the Father had assumed that this correspondence related primarily to the issue of the preparation of the Family Report and the Father’s failure to participate in the interview process, which to a large extent it did.
5) There appeared to be an issue of some significance between the Father and the Independent Children’s Lawyer as to the selection of the person, who would be appointed to prepare the Family Report. It was also apparent that the Father was very distressed that interim parenting orders had been made upon a ex parte basis, which had severely limited the time the children would spend with him and which ultimately provided for the children to spend time with him supervised at a Contact Centre. Prior to the time of these interim orders, the children had spent regular time with the Father upon an unsupervised basis.
6) The Father was cross examined at some length by the Counsel for the Independent Children’s Lawyer, Mr Wilson in relation to this correspondence on 21 February 2018, which highlighted the above issues.
7) Having regard to the contents of this correspondence, much of which was copied multiple times, it became apparent that the Father raised serious issues in relation to the ability, integrity and honesty of Judge Neville and he also appeared to be in conflict with and critical of the Independent Children’s Lawyer.
8) In the Annexure on page 42, in correspondence dated 11 November 2016, the Father refers to “the stupid decision” of Judge Neville to remove his four daughters from him. He further states, “that he will be taking both him (Judge Neville) and this matter to a higher court and personally sueing (sic) him along with the Independent Children’s Lawyer for loss of time with his daughters.” He refers to Judge Neville’s “lack of ability to decipher the truth and his act of making a judgement of guilty until proven innocent which goes against the Australian constitution of innocent until proved otherwise.” In addition he states, “Judge Neville has a lot to answer for”. This patently reveals a lack of respect for Judge Neville.
9) In the Annexure on page 51, the Father writes directly to Judge Neville stating that Judge Neville is required by law to protect children and he requests an immediate court order. He then states, “Make this happen or I will take matters in my own hands and start to breach every order Judge Neville has put in place, because what is good for one is good for both”.
10) In the Annexure on page 62, the Independent Children’s Lawyer responded to this email as follows:-
“The contents of your emails are somewhat concerning and your threats to take matters into your own hands and ‘breach every order Judge Neville has put in place’ are, to be honest, very concerning and raise alarm bells about the safety and well being of the girls. They are certainly not doing you any favours.”
11) In the Annexure on page 63, the Father responds in the last three lines on that page as follows:-
“I as a father should have rights to protect my precious daughters from her (the Mother’s) unstable relationships and life but both you, her, her lawyer and Judge Neville have taken that God given right off of me due to lies she sprayed to you all in her affidavit, and this in its self should be enough to raise concerns.”
12) In the Annexure on page 100, the Father refers to “this biast (sic) family court hearing”.
13) In the Annexure on page 106, the Father in correspondence with the Independent Children’s Lawyer in the context of the funding of the Family Report states that he will do so, “unless Judge Neville is not a man of his word”. The Father subsequently declined to fund the Family Report.
14) In the Annexure on page 132, the Father sarcastically refers to “Judge Neville and the pitiful Family law court of Australia”.
15) In the Annexure on page 138, the Father states: “For the sake of Judge Neville being able to save the Australian taxpayer dollars, I request that he reinstates me with the right to pay for a report writer that is NOT A FEMALE...”
16) In the Annexure on page 142, the Father refers to ill health due to stress Judge Neville has placed on him by “his uneducated decision over 12 months ago to remove healthy happy kids from a healthy happy environment” and that such stress should never have been placed upon him “if Judge Neville correctly assessed the fake claims from Ms Cullen”.
17) In the Annexure on page 169, the Father states in correspondence to the Independent Children’s Lawyer and Judge Neville:
“Judge Neville has gone totally against the way of the Australian constitution and the way of the courts which is INNOCENT UNTIL PROVEN GUILTY, but rather he has said I’m Guilty without and (sic) evidence or proof. Shame on him and his lack of working with the law of the land within Australia.
Considering I was told I have till the middle of July by yourself to be interviewed by Ms C only to be refused that interview by the Judge Neville is just further proof that this hole (sic) family court system including judges, independent children’s lawyer, and female reporter writers are so bias (sic) against the male.”
18) The Father was obviously very critical of Judge Neville since he had made the ex parte orders on 17 November 2015 and his statements were highly vitriolic, offensive and totally inappropriate in relation to his concerns as to the manner in which Judge Neville had conducted the proceedings. These statements made by the Father are not in any way endorsed by his legal representatives, who were unaware that such statements had been made until the Affidavit of the Independent Children’s Lawyer had been provided to them.
19) If the Affidavit of the Independent Children’s Lawyer had been provided to the Father’s legal representatives prior to the commencement of the hearing, they would have been in a position to object to this Affidavit going into evidence upon the basis that its prejudicial value outweighed its probative value, or alternatively have had the opportunity to raise with Judge Neville whether it was appropriate for him to embark upon the hearing of the matter at the outset before the hearing commenced.
20) It is conceded that this situation has arisen entirely of the Father’s own making and it is not suggested that Judge Neville has overtly expressed any view as to the outcome of the proceedings or made any adverse statements in relation to the Father or his credit. Whilst certain aspects of the Father’s evidence may of themselves have led Judge Neville to form an unfavourable view of the Father, it is submitted that it cannot be discounted that the Father’s prior criticisms of Judge Neville of which he has now been made abundantly aware from the exchanges of correspondence may have reinforced any unfavourable view he may have formed.
21) In Kennedy and Cahill (1995) 19 Fam LR 173 the Full Court referred to the principles of law in relation to a reasonable apprehension of bias and pre-judgment and referred to the decision of the High Court of R v. Watson: Ex parte Armstrong (1976) 136 CLR 248 in which it was stated that: “a judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial and if a judge does sit in those circumstances, prohibition will lie”. The Full Court also referred to the decisions of the High Court in Livesey v New South Wales Bar Association (1983) 151 CLR 288, Re:Polites; Ex parte Hoyts Corporation Pty. Ltd (1991) 173 CLR 78 and concluded :-
“The gravamen of the decision of the courts in all of the above cases is that a reasonable apprehension of bias exists if in all the circumstances, the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question before him or her.”
22) It is conceded that a conclusion of reasonable apprehension of bias should not be lightly drawn and no personal criticism of Judge Neville or the manner in which he has conducted the proceedings to date is made. It is not submitted that there has been any pre-judgment on Judge Neville’s part or that he has reached a premature conclusion as to the outcome of the proceedings.
23) It is submitted that the nature of the Father’s criticisms of Judge Neville are so consistently offensive and disrespectful and as Judge Neville has been made aware of such criticisms, that the Father or the public might entertain a reasonable apprehension that the Judge might not bring an impartial and unprejudiced mind to the resolution of these proceedings.
24) With great reluctance it is submitted that in all the circumstances Judge Neville should recuse himself from further hearing this matter and that these proceedings should be remitted for hearing before an alternative Judge of the Federal Circuit Court.
The Respondent Mother’s Written Submissions
The Respondent Mother filed written submissions on 3rd April 2018.
Those submissions were as follows (emphasis added):
1) These submissions are made in accordance with Order 3 of the Orders made by His Honour, Judge Neville on 7 March 2018.
2) The Father moves on an Application in a Case filed 7 March 2018, supported by an affidavit of Samira Friis filed contemporaneously with the Application.
3) No particulars of the Application have been provided.
4) The usual grounds for a judge to disqualify themselves from a matter on application by a party relate to actual or perceived bias. I am unable to determine from the Application in a Case or the affidavit in support the basis for this application.
5) These brief submissions are made on the assumption that an apprehension of bias is alleged arising from correspondence between the Respondent and the Court. That correspondence was the subject of cross-examination by the ICL’s Counsel prior to the Father’s Counsel raising the potential for this application.
6) In the event that the grounds of the Application are particularised beyond that correspondence in the submissions filed by the Father, I seek leave to make further oral submissions not covered by this outline.
7) It is settled law that a party seeking recusal must identify the issues which will need to be determined substantively in the case, the conduct which gives rise to the apprehension of bias, and the logical connection that indicates why the case could be decided other than on its merits.
8) All correspondence the subject of the affidavit of Linda Hansen sworn 13 February 2018 was within the actual knowledge of the Respondent as it was his correspondence.
9) The Respondent’s direct communication with the Court and correspondence with the ICL was raised in the Applicant Mother’s affidavit sworn 21 March 2017 at paragraph 22. An example of the emails is annexed.
10) In her trial affidavit, sworn 29 January 2018, the Mother again refers to the correspondence from the Father to the Court and to the ICL at paragraph 100. Eight pages of correspondence to the ICL are annexed.
11) A reference to some of the Father’s correspondence with the Court is made in the agreed Chronology filed by the ICL on 12 February and circulated before that time.
12) The ICL indicated an intention to file an affidavit annexing correspondence prior to the commencement of the trial.
13) On the first morning of the hearing, Your Honour mentioned making transcript available to the parties that related to notation E of the Orders made on 21 March 2017.
14) In my submission, the father and his legal representatives were on notice that:
a) The correspondence existed;
b) The correspondence was disrespectful; and
c) The correspondence would be in evidence in the proceedings.
15) To seek a disqualification and consequential delay in completion of the hearing at this time due to the “new” circumstances arising from the father’s cross-examination by the ICL is reflective of negligence in the preparation of the father’s case for trial.
16) In the circumstances of this case, costs should be ordered in accordance with rule 21.07 of the Federal Circuit Court Rules 2001.
The ICL’s Written Submissions
The Independent Children’s Lawyer filed written submissions on 3rd April 2018.
Those submissions were as follows (emphasis added):
RECUSAL APPLICATION
Basis for application
1) The Father’s recusal application is founded on the assertion that in circumstances where the Father sent inappropriate and offensive emails to his Honour’s Chambers and his Honour was aware of the emails then the ‘Father’ or the ‘public’ may form the view that there was a reasonable apprehension of bias [Submissions on behalf of the Father 29 March 2018, par 23].
No criticism of the Judge
2) Significantly there is no criticism of his Honour in the conduct of the proceedings and no suggestion that his Honour has pre-judged the matter [Submissions on behalf of the Father 29 March 2018, par 23].
3) The Father was not critical of his Honour in his affidavit evidence or in cross examination.
4) To the contrary in cross examination the Father went so far as to say that he considered his Honour to be a:
a) “man of integrity”;
b) “good judge”; and
c) “good bloke”.
The Father has acted inappropriately
5) Further Counsel for the Father concedes that the emails sent by the Father were “highly vitriolic”, “offensive” and “totally inappropriate” [Submissions on behalf of the Father 29 March 2018, par 18].
Father’s legal practitioners knew about the offensive emails
6) Counsel for the Father submits that the Father’s legal representatives first became aware the Father had written the offensive emails to the ICL and his Honour’s chambers when they were served a copy of Ms Hansen’s affidavit on 20 February 2018 [Submissions on behalf of the Father 29 March 2018, par 3]. This submission is incorrect. The Father’s legal representatives knew of the Father’s emails before the commencement of the trial on 19 February 2018 and on 18 February 2018 at the latest.
7) The Father’s emails and their contents were identified in the following documents:
a) the Mother’s affidavit sworn 21 March 2017 at par 22, Annexures “C11”, page 77; “C12”, page 79; “C 13”, page 82-8;
b) the Mother’s affidavit sworn 29 January 2019 at par 100; Annexures “C7”, pages 58-65;
c) the Agreed Chronology circulated by the ICL.
8) The Father in his trial affidavit (sworn and filed 16 February 2018) acknowledged and referred to the Mother’s affidavit sworn 29 January 2018. This affidavit was prepared by the Father’s solicitor.
Law regarding apprehension bias test
9) The test for apprehension of bias, as stated in Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [11] 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.”
10) In Michael Wilson & Partners Ltd v Nicholls - endnotes (2011) 244 CLR 427; [2011] HCA 48 at [67] Gummow ACJ, Hayne, Crennan and Bell JJ held that:
“an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided.”(underline added).
11) Deane J in Webb v The Queen (1994) 181 CLR 41, (1994) 122 ALR 41, (1994) 68 ALJR 582 at [12] sets out four distinct (but sometimes overlapping) categories covered by the doctrine of disqualification by reason of the appearance of bias:
“The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first ((99) e.g., a case where a dependent spouse or child has a direct pecuniary interest in the proceedings.) and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third ((100) e.g., a case where a judge is disqualified by reason of having heard some earlier case: see, e.g., Livesey v. New South Wales Bar Association (1983) 151 CLR 288; Australian National Industries v. Spedley Securities (1992) 26 NSWLR 411.) and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.”
12) The High Court in Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17; at 294 stated:
“it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court.”
Kennedy and Cahill
13) Counsel for the Father cited the decision in Kennedy v Cahill (1995) 19 Fam LR 173; FLC 92-605 as authority for the recusal application.
14) Kennedy v Cahill concerned a matter where there was an undisclosed close personal relationship between the judge and a solicitor for one of the parties. The Full Court of the Family Court in Kennedy v Cahill concluded that an undisclosed, serious and close personal relationship which was intended to continue between a Family Court judge and a solicitor for one of the parties in the matter being resolved by her, gave rise to a reasonable apprehension of bias.
15) The authorities cited in Kennedy v Cahill all involve matters where the judge had, or might be perceived to have, acted in a way that a hypothetical fair-minded lay observer with knowledge of all relevant circumstances may have a reasonable apprehension that the judge could be biased and pre-judge the matter.
Submission
16) A fair-minded lay observer would not reasonably apprehend that his Honour might not bring an impartial and unprejudiced mind to the resolution of this matter in circumstances where:
a) there has been no criticism of the credibility of his Honour in the conduct of the matter;
b) there is there is no suggestion that His Honour has acted inappropriately or in any way untoward in in the conduct of the matter;
c) His Honour has no direct or indirect interest in the proceedings;
d) His Honour has no knowledge of any prejudicial but inadmissible fact or circumstance;
e) The Father asserts that his Honour is a man of integrity and a “good bloke”.
COSTS
17) Costs in matters under the Family Law Act are covered by the provisions of section 117 of the Act. Section s117(1) provides that subject to subsection (2) and other sections, each party to proceedings under the Act shall bear his or her own costs. Section 117(2) provides:
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order of otherwise, as the court considers just.
18) Ordinarily costs, when awarded, are awarded on a part and party basis.
19) Costs orders are compensatory and not punitive in nature: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59; Ohn v Walton (1995) 36 NSWLR 77.
20) In Colgate-Palmolive v Cussons [1993] FCA 536 at [24], Sheppard J held that there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. His Honour noted some of the circumstances which have been thought to warrant the exercise of the discretion, including evidence of particular misconduct that causes loss of time to the Court and to other parties and the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions.
21) Special costs orders are warranted in certain circumstances and where the conduct of the case by the party against whom costs are sought is plainly unreasonable: Fountain Selected Meats (Sales) Pty Ltd v Universal Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 202; Dunstan v Rickwood (No 2) [2007] NSWCA 266 at [44].
22) The High Court in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72; 152 ALR 83; 72 ALJR 578 at [44] provides:
“It may be true in a general sense that costs orders are not made to punish an unsuccessful party. However, in the particular circumstance of a case involving some relevant delinquency on the part of the unsuccessful party, an order is made not for party and party costs but for costs on a “solicitor and client” basis or on an indemnity basis. The result is more fully or adequately to compensate the successful party to the disadvantage of what otherwise would have been the position of the unsuccessful party in the absence of such delinquency on its part.”
23) Were it not for the Father’s actions there would be no recusal application.
24) Counsel of the Father accepts that the situation that has brought about the recusal application has been “entirely of the Father’s own making” [Submissions on behalf of the Father 29 March 2018, par 20].
25) The Father’s actions have been plainly unreasonable and relevantly delinquent. The ICL should be adequately compensated by being awarded her costs on an indemnity basis.
26) In the circumstances if his Honour denies the recusal application the Father should pay the ICL’s costs of the Recusal Application.
27) If his Honour does recuse himself from these proceedings the matter will need to be heard anew by a different judge and two and a half hearing days will have been lost. In these circumstances the Father should pay the ICL’s costs of the Application in a case and of the hearing days caused to be thrown away by the Recusal Application.
Costs against the Father’s legal practitioners
28) The matter ran for two and a half days before Counsel indicated to the Court that the Father may make an application for his Honour to recuse himself.
29) Despite Counsel for the Father’s (incorrect) submission that the Father’s legal team only became aware of the father’s emailing history after the trial had started the facts are that the Father’s legal team at the very least possessed the Mother’s affidavit sworn 29 January 2018 whilst preparing the Father’s affidavit for trial [see Father’s Affidavit filed 16 February 2018; Case Outline filed on behalf of the Father dated 16 February 2018].
30) The Full Court in Cassidy & Murray [1995] FLC 92-633 at 82,354, citing Ridehalgh v Horsefield (1994) 3 All ER 848; [1994] Ch 205 with approval, said that personal costs orders may be made against a solicitor if there is ‘a serious dereliction of duty’ (which does not necessarily amount to serious professional misconduct): see also Z (a solicitor) & Limousine [2010] FamCA FC 59 at [45] – [47].
31) The Father’s legal practitioners knew that the Father had sent the offensive and inappropriate emails to his Honour’s Chambers prior to the commencement of the trial. They could have obtained instructions and made the recusal application before or at the commencement of the trial rather than wait until the trial is in its third day.
32) In circumstances where the Father’s legal practitioners knew that the Father had sent the offensive and inappropriate emails to his Honour’s Chambers prior to the commencement of the hearing and yet waited until the third day of the hearing to indicate to the Court that a recusal application may be made it would be appropriate for the Court to make personal costs orders against the Father’s legal representatives for the costs of the recusal application and should the recusal application succeed for the costs thrown away caused by the application: Federal Circuit Court Rules - Rule 21.07.
Outline of Legal Principle – Apprehended Bias
A convenient starting point for the consideration of principle is Kirby J’s comments in Antoun v The Queen where his Honour also referred to Mason J’s regularly cited caution in Re JRL; Ex parte CJL against acceding too readily or too quickly to applications for disqualification. At [34], Kirby J said (internal citations omitted):[3]
It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte CJL, this court has “loudly and clearly” expressed a corrective against any view that a judge should too readily accept recusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose among the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases.
[3] Antoun v The Queen (2006) ALJR 497; (2006) ALR 51 (“Antoun”). Re JRL; Ex parte CJL (1986) 161 CLR 342 at p.352. French CJ’s judgment in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [1] begins with Mason J’s important admonition in Re JRL. His Honour dissented, as did Gummow J, in the result.
Kirby J also said in Antoun v The Queen, at [32] (internal citations omitted):[4]
In this, the approach of this Court has now travelled beyond the apparent approbation of judicial silence expressed in R v Watson; Ex parte Armstrong. In the United States of America, such silence has been held, on occasion, to constitute a denial of due process. It deprives the party who will ultimately be affected by judicial conclusions of the “opportunity, before judgment, to be heard to correct and to persuade.” Just as the judge should, to a proper extent, listen, so the judge should, to a proper extent, express any tentative views.
[4] Antoun v The Queen (2006) 224 ALR 51. See too the earlier comments of the High Court in Vakauta v Kelly (1989) 167 CLR 568 at p.571, where Brennan, Deane & Gaudron JJ said: “[A] trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.”
Similar views to those expressed by Kirby J in Antoun were also expressed in the plurality judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson.[5]
[5] Johnson v Johnson (2000) 201 CLR 488 at [13]. The plurality’s comments in Johnson on the attributes of the relevant bystander were set out in full in French CJ’s dissenting judgment in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [46], and in the judgment of the majority (Heydon, Kiefel & Bell JJ) at [132].
In Johnson v Johnson, Kirby J noted in particular, at [46] (internal citations omitted):
Whatever may have been the tradition in earlier times, opinions favouring silence on the part of an adjudicator during a hearing (which is the surest means of avoiding most allegations of prejudgment) are now seen as carrying risks of an even greater injustice. Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator's undisclosed concerns. A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions. Uninformed members of the public are doubtless sometimes surprised by the robust exchanges which take place in court, especially between a judge and experienced lawyers. But judges and other adjudicators and lawyers know that such dialogue can have great value.
Changes that have come about in the administration of justice, including the increase in the number of trials by single judges, have also required, to some extent, an adjustment to the rules of reticence in judicial observations that may still be appropriate where trials, criminal or civil, are conducted before a jury. One of the reasons for such changes has been the desire to increase the efficient management of the trial process. Yet it is in that context that the expressions of preliminary and tentative views may sometimes appear to an outsider to indicate prejudgment. Although some adjudicators may be hard to shift from tentative opinions, lawyers know that, in most judicial decision-making, the process is a continuous one. Preliminary inclinations do change.
And further, in Johnson v Johnson Kirby J outlined the expected ‘characteristics’ of the “reasonable bystander” (accepting that his Honour referred to a character or persona known as “the fictitious bystander”). At [53], Kirby J said (internal citations omitted; emphasis added):[6]
The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
[6] Johnson v Johnson (2000) 201 CLR 488. Kirby J’s comments, at [53] in Johnson to which I have referred concerning “the bystander”, were considered further in Smits v Roach (2006) 227 CLR 423 at [95] – [97]. Concerning Kirby J’s reference in Johnson to the “fictitious bystander”, I note that the plurality in Johnson, at [13], referred to “the fictional observer.” Certainly, since the High Court decision in Ebner, the test has referred to “the fair-minded lay observer.” See Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at [6] (Gleeson CJ, McHugh, Gummow & Hayne JJ: Callinan J concurring, at [182]), [83] (Gaudron J); Smits v Roach (2006) 227 CLR 423 at [56] (Gummow & Hayne JJ); and British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [37] (French CJ), and [139] (Heydon, Kiefel & Bell JJ).
In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd, Kirby and Crennan JJ said, at [112] (internal citations omitted; emphasis added):[7]
Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.
[7] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577. His Honour, Gummow A-CJ, concurred, at [4].
In the same case, in a detailed examination (at [171] – [180]) of what does and what does not constitute apprehended bias, Callinan J said, at [177], that “the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer.” And again, at [180], his Honour said (emphasis added): “Taken cumulatively, his Honour’s interventions and reasons for judgment do not give rise to an apprehension of bias. Critical, strong and candid they may have been, but excessively so they were not. To some extent they may be taken to be expressions of exasperation, unfortunately so perhaps, but as a matter of degree, still falling short of apparent bias.” As with the comments of Kirby and Crennan JJ, A-CJ Gummow concurred, at [4], with the remarks of Callinan J.
The High Court’s most recent consideration of apprehended bias is the decision in Michael Wilson & Partners Limited v Nicholls.[8] It is helpful to note the following from that case, both regarding its summary of principle, and for comparative purposes, its complex factual and procedural circumstances.
[8] Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 (“Michael Wilson”).
First, as to relevant principle, the High Court said, at [31] – [33] (internal references omitted), the relevant test in relation to apprehended bias is:
[31] … 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.
[32] As the plurality in Johnson v Johnson explained, “[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues.”
[33] Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias.
The High Court also commented in Michael Wilson, first at [63] in relation to the test in Ebner, then at [67], saying (internal citations omitted; emphasis in original):
[63] In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And second, 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. The plurality in Ebner went on to say that “[t]he bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated.” So too, in this case, the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.
[67] … an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.
The High Court further observed, at [69] – [70] (internal citations omitted):[9]
[69] Here, however, it was said that “the fact that one party appeared before the judge on seven separate days in closed court raised a different and additional concern.” That concern was identified as the possibility “in such circumstances that the judge's mind will become familiar with the character of the plaintiff's case to an extent that, consciously or subconsciously, there will be a tendency to place the further evidence within the pre-existing mental structure” (emphasis added). But the existence of a “concern” described as the possibility of placing the evidence led at trial into a “pre-existing mental structure” does not demonstrate that the fair-minded lay observer might reasonably apprehend that the judge might have prejudged an issue to be decided at trial. In order to establish such a reasonable apprehension it is necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgment.
[70] The fact that Einstein J made several ex parte interlocutory orders and on each occasion directed that those applications, the material in support, the reasons for making the orders and the orders themselves not be disclosed to one side of the litigation did not found a reasonable apprehension of prejudgment of the issues that were to be fought at trial. It may well be that the directions not to disclose material should not have been left in force for as long as they were. Perhaps they should not have been made at all. But if their making or the failure to limit their duration was wrong, that did not found a reasonable apprehension of bias.
[9] See also Heydon J’s comments, at [117], to the effect that, even on the facts in Michael Wilson, “prolonged familiarity” was insufficient to establish any relevant apprehended bias.
In addition to these authorities, the following further matters should be noted.
Recent Full Court of the Family Court of Australia authority, such as Batey-Elton v Elton, Strahan v Strahan (Disqualification) and Stephens & Stephens, has consistently cited and used as the relevant jurisprudential touchstone the High Court decision in Ebner.[10] As noted below, none of the High Court authorities, or any post-Ebner Full Court decisions, were cited by the Applicant Father.
[10] Batey-Elton v Elton (2010) 43 Fam LR 62; Strahan v Strahan (Disqualification) (2010) 42 Fam LR 252; Stephens v Stephens (Disqualification) [2010] FamCAFC 206; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
Given the actions of the Father at the time, and the circumstances, of the sending of the prodigious number of emails to my Chambers, of some moment is the Full Federal Court decision in John Holland Rail Pty Ltd v Comcare.[11] That decision related specifically to a party’s legal adviser unilaterally being in communication with the trial Judge’s Chambers. It is important to set out in a little detail the comments of the Full Court (North, Kenny and Dodds-Streeton JJ).
[11] John Holland Rail Pty Ltd v Comcare (2011) 276 ALR 221.
After noting, at [22], the importance to have regard to “all the circumstances” that surround the nature, subject matter, sequence and extent of the communication in question, and at [23], that the mere fact of unilaterally sending communications to Chambers does not raise a presumption of impropriety, their Honours said, at [24] – 28]:
[24] Further, to found a reasonable apprehension of bias, it would ordinarily be necessary to establish, at least, that the impugned material was received by the judge personally. In Fisher, for example, it was clear that the associate relayed an improper unilateral communication to the judge, who subsequently revoked the defendant’s bail before affording him a sufficient hearing.
[25] Chambers staff are powerless to prevent the forwarding of unsolicited materials, emails, correspondence or the making of telephone calls to chambers. On occasion, it is also necessary or convenient for chambers staff to initiate unilateral communications, such as inquiries about dates, the filing of materials or similar matters. It is generally not apparent whether the content of communications received in chambers is appropriate for transmission to the judge until a staff member has made a preliminary examination of written material or, if the communication is oral, has listened to it for at least some time. Similarly, it may not be immediately apparent to chambers staff that a written communication has not been circulated to other parties.
[26] Under the docket system prevailing in the Federal Court, effective communication between the parties, their legal representatives and the court is fundamental for efficient case management by the docket judge. Chambers staff are, in the ordinary course, well aware of the need to assess communications forwarded to chambers and to manage the transmission or, where necessary, interception of, material and information directed to the judge, to avoid the actual or apprehended compromising of the judge’s impartiality.
[27] In this context, the receipt of an improper unilateral communication by an associate or other member of chambers staff is, from time to time, unavoidable; and does not, in itself, involve any impropriety or breach of duty on the part of chambers staff, although their continued engagement or participation in, or transmission to the judge of, such communications may, of course, involve impropriety or misjudgement.
[28] In summary, the unilateral communication of objectionable material to chambers staff is not tantamount to its receipt by the judge, is unavoidable and occurs from time to time, involves no necessary impropriety on the part of the judge’s chambers staff and is not, in itself, the basis for a reasonable apprehension of bias in the judge. Of course, the prevalence of unilateral communications between the litigants, their lawyers and chambers also requires litigants, their lawyers and court staff to be vigilant in ensuring that the proper procedures are observed. We agree generally with the observations of the Court in Fisher at 352 as to the prevalence of and the caveats applicable to unilateral communications between litigants, their lawyers and chambers in modern litigation.
Then at [30], by reference to earlier High Court authority, the Full Court confirmed that “It is incumbent on the party alleging bias to show “a substantial ground” for alleging that the judge is disqualified: see Ebner at 348. In this case, there was no substantial ground shown.”
For completeness, it is sufficient to record that the Full Federal Court has also confirmed, in accordance with High Court authority, that “an allegation as to reasonable apprehension of bias must be firmly established.”[12] In the same case (Reece v Webber), the Full Court confirmed, at [45], and not for the first time that it is not sufficient that the “reasonable bystander” “has a vague sense of unease or disquiet.”
[12] Reece v Webber (2011) 192 FCR 254; (2011) 276 ALR 196 at [45]. Emphasis added; internal citations omitted.
Outline of Principle – Costs
Because the issue of “costs” figured large in the Application, notably on the part of the Mother and the ICL, it is appropriate that some brief outline of principle be given here. Unfortunately, this issue was not addressed in the Father’s written submissions, and only cursorily by his solicitor during the hearing of the Application upon prompting from Counsel for the Mother and the ICL, as well as questions from the Bench.
For immediate purposes it is sufficient to note the Full Court of the Family Court’s discussion in Stephens v Stephens (emphasis added):[13]
[13] Stephens v Stephens (2011) 44 Fam LR 117.
[62] Section 117(1) of the Act provides: “[s]ubject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.”
[63] Section 117(2) of the Act provides that if, in proceedings under the Act, the court is of opinion that there are circumstances that justify it in doing so, it may, subject to sub-ss (2A), (4) and (5), and the applicable rules, make such order as to costs, whether by way of interlocutory order or otherwise, as it considers just.
[64] Section 117(2A) of the Act provides that in considering what order (if any) should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g). In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 the Full Court (Kay, Warnick and Boland JJ), referring to s 117(2A), said at 130 [41] :
A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
[65] As to the relationship between s 117(1) and s 117(2) of the Act in Penfold v Penfold (1980) 144 CLR 311, in joint reasons, Stephen, Mason, Aickin and Wilson JJ said at 315:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”. (emphasis added)
[66] As to the nature of the hearing of an application pursuant to s 117 of the Act in Penfold their Honours said at 315-16:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent [(1970) 92 W.N. (NSW) 503, at p. 505]). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
[67] We also observe that in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) of the Act referred to costs in the conventional sense and thus to the payment by one party to litigation of money by way of a partial indemnity for professional legal fees and expenses actually incurred by another party in the course of the litigation: see Hayne J at 219. An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages: Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543 and McHugh J at 567; Ruddock and Ors v Vadarlis and Ors (2001) 188 ALR 143 per Full Court of the Federal Court at [12] and Brott and Joachim (2006) FLC 93-259 per Full Court (Holden, Warnick and Boland JJ) at 80,403-404.
In the same case, the Full Court commented summarily on the award of indemnity costs, relevantly at [73]:
An order for costs may be made on an indemnity basis, subject to a judicial determination capable of being made that there ought to be a departure from the usual basis that costs be payable on the party and party basis. For a discussion of the jurisdiction to order indemnity costs and its exercise see Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J at 256-257 and NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) (2001) 109 FCR 77 per Lindgren J at [53] to [90].
The decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (noted by the Full Court) is a regularly cited authority for relevant principle regarding the awarding of indemnity costs.[14] In that judgment, his Honour outlined the following principles, at pp.232 – 234, which I set out in full (emphasis added):
[14] Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225.
It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:-
1. The problem arises in adversary litigation, i.e. litigation
as between parties at arm's length. Different considerations
apply where parties may be found to be entitled to the payment of their costs out of a fund or assets being administered by or under the control of a trustee, liquidator, receiver or person in a like position, eg. a government agency or statutory authority.
2. The ordinary rule is that, where the Court orders the costs
of one party to litigation to be paid by another party, the
order is for payment of those costs on the party and party
basis. In this Court the provisions of Order 62, rules 12 and
19, and the Second Schedule to the Rules will apply to the
taxation. In many cases the result will be that the amount
recovered by the successful party under the Order will fall
short of (in many cases well short of) a complete indemnity.
3. This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of Court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it. No doubt any consideration of whether there should be any change in the practice would require the resolution of the competing considerations mentioned by Devlin LJ in Berry v. British Transport Commission and Handley JA in Cachia v. Hanes on the one hand and by Rogers J in Qantas on the other. The relevant passages from the respective judgments have been earlier referred to.
4. In consequence of the settled practice which exists, the
Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v. Barnes (39 Ch D at 141) said the Court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require." Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v. Preston ((1982) 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo, "The categories in which the discretion may be exercised are not closed". Davies J expressed (at 6) similar views in Ragata.
5. Notwithstanding the fact that that is so, it is useful to
note some of the circumstances which have been thought to
warrant the exercise of the discretion. I instance the making
of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by
Woodward J in Fountain and also by Gummow J in Thors v. Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreported, Court of Appeal)and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.
Finally, on the question of costs, but in the very difficult aspect of whether a party’s legal adviser should bear some or all of the costs award, the Court of Appeal of the New South Wales Supreme Court very recently delivered a judgement on this very matter.[15] It was cited by the ICL’s Counsel. Accepting the specific statutory regime that was relevant to that decision, the Court there said, at [57] (emphasis added):
The purpose of s 348(1)(b) [Legal Profession Act NSW] was to impose a costs sanction on a law practice or practitioner who provided legal services in respect of a proceeding which ought not to have been brought because it did not have reasonable prospects of success. The phrase “reasonable prospects of success” is not defined in the Legal Profession Act, although s 345 provides some guidance as to its meaning. It is not a high or inflexible bar as Barrett J (as his Honour then was) explained in Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284; [2005] NSWSC 3 (his Honour’s judgment was in respect of the former s 198M(1), the terms of which were substantially the same as the present s 348). As Barrett J observed in that case, at [28]:
“... ‘without reasonable prospects of success’ ... equates its meaning with ‘so lacking in merit or substance as to be not fairly arguable’. The concept is one that falls appreciably short of ‘likely to succeed’.”
[15] Newell v De Costi Seafoods (franchises) Pty Ltd [2018] NSWCA 49.
Consideration & Determination
The following matters, summarised, in my view clearly show that the Application was doomed to fail. It necessarily follows from such a conclusion that there be an Order for costs in the Mother’s and the ICL’s favour. In my clear view, for the reasons given, it is not appropriate, as urged by the Father, that costs simply be reserved. Among other things, the recusal Application is a completely discrete aspect of the matter and should be dealt with in the same manner.
First, an observation regarding, in my view, the immensely unfortunate adverse procedural and other impact(s) of the defective and poorly conducted recusal Application.
Among many reasons for regret on the Court’s part, as noted at the outset of these reasons, the time required to deal with the Application has necessarily meant that (a) public resources of the Court have been needlessly used, which has flow-on effects for other litigants,[16] and (b) it could have been used more profitably to deal with the remaining outstanding parenting issues.
[16] In this regard, see the regularly cited comments of the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 (“AON”) at many places including at [5] and [23] – [30] (French CJ), [93] – [100] and [113] – [114] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
With some diffidence, I do not accept the submission put by the ICL’s Counsel that the Application could be seen to have been a ploy by the Father to ensure that a further or fresh family report is ultimately ordered, noting that the Father refused to participate in the original Report because it was being prepared by a woman. And after all this, the net result is that the Father is no closer to having resolved whether and if so when and in what circumstances his time with his daughters might or will be resumed. In short, his actions have delayed appreciably the further conduct of the substantive parenting matter.
To stress this point of delay and other “costs” that are imposed not only on the Court, other litigants, as well as the litigants themselves, the plurality in AON, at [100], quoted with approval earlier comments of French J (when his Honour was on the Federal Court), thus (internal citations omitted):
… Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary.
In relation to “knowledge” of the matters that found the Application and the timing of it, I note the following:
(a)Some of the Father’s “colourful” emails addressed to the Court were annexed to the Mother’s Affidavit, filed 22nd May 2017;
(b)Some of the Father’s emails addressed to the Court (and to the ICL) are referred to and annexed to the Mother’s trial Affidavit, filed 29th January 2018 (e.g. par.100 (a) – (f));
(c)The ICL’s Chronology, filed 20th February 2018, refers to the Father emailing the Court on a number of occasions;
(d)The ICL filed in Court on 20th February 2018 an Affidavit (affirmed by the ICL on 13th February 2018) which annexed the complete email correspondence between the Father and the ICL, which included the Father’s correspondence with the Court, which the Father’s Written Submissions, at par.3, confirm was not sent to my Chambers. This is to acknowledge as fact, which it is, that I had not seen the said material until the ICL’s affidavit was filed in Court on 20th February 2018; and
(e)The Father foreshadowed the recusal Application, subject to instructions, only at the conclusion of the [now part-heard] hearing on 23rd February 2018.
In addition to the Father being the author of the correspondence that gives rise to the current Application, on the chronology outlined in the previous paragraph (and set out in the written submissions from the Mother and the ICL), in my view it is incontestable that the Father knew precisely what had been previously written to the Court (and to the ICL). In such circumstances, two things must necessarily follow.
First, the Mother, the ICL and the Court should reasonably be able to infer that the Father properly informed his legal advisers, and or that his legal advisers properly took complete instructions and obtained all relevant information to conduct the hearing, accepting that the Father’s lawyers only came on to the record on 15th January 2018. Not to have obtained all relevant information would likely be a dereliction of duty. I do not make such a finding for the purposes of the current Application.
In this regard, however, I note that at par.4 of the Father’s Written Submissions, said the following in relation to the Father’s correspondence with the Court (emphasis added):
The legal representatives for the Father had assumed that this correspondence related primarily to the issue of the preparation of the Family Report and the Father’s failure to participate in the interview process, which to a large extent it did.
Respectfully, simply to assume what was in certain material that was generated by their client, the Father, was professionally inappropriate, if not worse. Proper preparation required all material to be checked. Plainly this did not happen. This was in circumstances where everyone was on notice simply by considering, among other things, the Mother’s trial Affidavit, in which the Father’s correspondence featured (and some of it was annexed to it) as a matter in issue. The ICL raised it. But still no relevant checking was done by the Father and or by his lawyers.
Secondly, the principle encapsulated in the maxim, ex turpi causa non oritur action, has relevance here. Broadly translated, that maxim states that from a dishonourable or base cause an action does not arise. The maxim and its basal principle was discussed at some length by the High Court in Miller v Miller.[17] The discussion was in the broader context of “illegality.” The plurality noted at [27] that, among other things, perhaps the original understanding sought to be captured by the maxim can be dated to Lord Mansfield’s comment in 1775 in Holman v Johnson that “no Court will lend aid to a man who funds his cause of action upon an immoral or an illegal act.” The broader discussion by the High Court in Miller, at [12] – [29], was in the context of the need for caution in applying such a maxim and to have regard to the relevant statutory context [if any] that applies to the matter before the Court.
[17] Miller v Miller (2011) 242 CLR 446. Holman v Johnson (1775) 98 ER 1120 at 1121. The context of the decision in Miller v Miller is significantly removed, factually and legally, from the present matter. That case involved issues of negligence and duty of care in circumstances where the parties in question were involved in a joint criminal enterprise. Such distances of fact and law do not, in my view, detract from the discussion of basic principle and the careful and reasonable application of it to the circumstances of the current matter. Generally for a discussion of the inability to recover damages based on the criminal (or similar) conduct of a party, see also Halsbury’s Laws of England, (Fourth Edition) Vol.12 (London: Butterworths, 1975) par.1136.
In my view, the basal principle must apply here. The Father cannot benefit, in the sense of procuring a different judge and perhaps also procuring time and (intentionally or not) delaying the proceedings, from his own actions, namely his lengthy and abusive emails to the Court.
Moreover, as already noted, he has disowned that correspondence. He has apologised to the Court (and to the ICL), in a sense “purging” himself of what might otherwise have been viewed as almost amounting to contempt of the Court. I note immediately that such a claim has never been raised.
Because (a) the material was generated by the Father, the very person who now seeks to use it to disqualify me, (b) due notice was given to the Father and his legal advisers of the Mother’s intention to refer to this correspondence some weeks before the hearing, and (c) the ICL flagged the Father’s correspondence in her Chronology, the Father (nor his legal advisers) cannot now complain that they had no relevant notice of this material. Indeed, they had ample opportunity to check it but patently did not do so. As stated in the Written Submissions, they merely “assumed” what the correspondence related to. It was not checked as it should have been in accordance with standard or good professional practice.
And in any event as earlier observed, in my view it is of quite some significance that the Father disavowed, and apologised for, his correspondence that forms the basis for the recusal Application. I accept his apology and his disavowal, as I was urged to do by the Father’s solicitor during the hearing of the Application.
By reference to the same “time line” of when notice had been given to the Father and his legal advisers prior to the trial (and even when the Affidavit was filed in Court [20th February], some 2 or so days before any “foreshadowed” (as opposed to actual) recusal Application was mooted [23rd February]) about the correspondence generated by the Father at an earlier point in time, the lateness of the Application must tell against its success. Relevant authority to which I have referred cautions on the “risk” of waiver if there is delay in bringing a recusal Application.[18] In my view, this has occurred here.
[18] See Smits v Roach (2006) 227 CLR 423 at [125].
Next, relevant particulars of the grounds of the Application are, at best, opaque in the extreme. Authority of long-standing confirms that it is imperative that proper particulars are given of the recusal Application.[19]
[19] See, among many authorities, Batey-Elton v Elton (2010) 43 Fam LR 62 at
On the basis of Ms Friis’ extremely brief Affidavit, no such details were set out. As a matter of procedural fairness, the Mother and the ICL (as well as the Court) should be provided with proper particulars of any Application. Even with the benefit of the Father’s Written Submissions, detail was still rather sketchy other than reference to the stridency and the repetition of the Father’s [then] views about me (and the ICL). The connection between the impugned conduct and the claimed apprehension of bias must be “firmly established” as opposed to there being simply or merely “a vague sense of unease or disquiet.”[20]
[20] Reece v Webber 276 ALR at [45] and the authorities there cited.
The “fair-minded lay observer”
To use the general formulation of Kirby J in Johnson, quoted earlier in these reasons, in my view, the reasonably well-informed, reasonable bystander (or fair-minded lay observer) would have at least a general appreciation that Courts which exercise family law jurisdiction, where self-represented litigants are in abundant supply, very regularly receive intemperate and troubling correspondence (usually sent directly to Chambers) by people who are experiencing various kinds and degrees of stress due to family breakdown, and other things. The knowledge of the reasonably well-informed, fair-minded lay observer would be informed by, among other things, the constant stream of media reports of troubling matters before the family law Courts.
The flood of correspondence to Chambers was acknowledged, in a different context, by the Full Court of the Federal Court of Australia in John Holland Rail Pty Ltd v Comcare to which I have earlier referred.
That being so, in my view, the volume and nature of the Father’s correspondence is very much typical of other correspondence received by Chambers. This too would militate against any finding that the Father’s correspondence by itself, in accordance with authority, was sufficient to warrant me removing myself from the litigation. To do so would go against a significant body of authority which confirms that judges should be slow to remove themselves from a matter, and also that correspondence to a Judge’s Chambers (without significantly more) is also insufficient to establish a sufficient basis for recusal.
Further, as Heydon J said in Michael Wilson, at [117], mere “familiarity” with material, which is suggested here as a reason for recusal, is insufficient to found a claim for apprehended bias.
In my view, it borders on anathema that a litigant by his own actions could, in effect, manufacture circumstances where a recusal Application would succeed. This is the case here. The Father’s own significant volume of correspondence with the Court is used, and in fact is the sole basis, for the recusal Application. If the Application was to be granted it would potentially enable any litigant to manufacture material which, when put before the Judge, would almost automatically to require that judicial officer to recuse himself or herself. Followed to its logical conclusion (albeit in the criminal sphere), a person on trial for murder or other heinous offence could seek to have the judge recuse herself upon the tender of, for example, offensive death threats or other incriminating material. Just so here: a person cannot rely upon his or her own actions to found a recusal Application, absent some compelling reason for a contrary view, notably having regard to the Full Federal Court’s comments in John Holland v Comcare at [24] – [28] cited earlier in these reasons.
Further, the law has long recognised, in many and diverse circumstances, that a person cannot profit in any relevant sense (e.g. financial, procedural or otherwise) from his or her own adverse action. Thus, a burglar or fraudster cannot benefit or profit from the proceeds of their crime. In equity, among many maxims, a person who comes to equity must come “with clean hands”, and equally, “those who seek equity must do equity.” This latter maxim means that justice shall be reciprocal between the parties. Among other things, should the Father’s Application succeed, it would mean that (a) the Mother and the ICL would have incurred very significant legal and other costs to not avail, and (b) all parties and the ICL would ultimately have to incur double costs because of a re-hearing before a different Judge. Thus, all the costs incurred by all (including time) over the 2½ days of the trial thus far would be thrown away.
Submissions, apprehended bias & the test in Ebner
In Antoun, at [82], Callinan J said that the “test of apprehended bias is not in doubt.” His Honour was referring to the test as set out in Ebner to which I have referred earlier in these reasons.
Also earlier in these reasons I referred to a number of Full Family Court decisions that likewise have referred to and used the test as set out by the High Court in Ebner, cases such as Stephens and Strahan.
Learned academics in practice text books that discuss at length the “rule against bias” likewise put a central focus on the High Court’s decision and articulation of the test for apprehended bias in Ebner and the cases (in many jurisdictions) that have followed that test.[21]
[21] Judicial Review of Administrative Action and Government Liability, (Sixth Edition) (M. Aronson, M. Groves, G. Weeks) (Sydney: Lawbook Co – Thomson Reuters, 2017) at Chapter 9 “The Rule against bias” and in particular “The Ebner Two-Step” at pp.647 – 652 and passim. Disqualification for Bias, (J. Tarrant) (Sydney: The Federation Press, 2012).
Nowhere in the Father’s written or oral submissions was there any mention of or reference to this fundamental test of the High Court in Ebner. Given the gravity of the Application before the Court and the adverse potential for all concerned, this omission in the Applicant Father’s Written Submissions was, in my view, very deficient. In my view, it bordered on the professionally negligent. Someone, anyone, could have, and should have, checked the Father’s material. Patently, no one did.
The only Full Court authority referred to in the submissions is one that dates from 1995, obviously prior to Ebner. And the 1995 Full Court authority relied upon by the Father (Kennedy and Cahill)[22] concerned a case involving an undisclosed personal relationship between the judge hearing that matter and a solicitor for one of the parties. Factually, it bears no resemblance to the facts and circumstances of the current matter. And obviously its provenance, coming as it does long before the High Court’s comments in Ebner and subsequent cases, as well as later Full Court of the Family Court authority which likewise consider Ebner, renders it of next to no value for current purposes.
[22] Kennedy and Cahill (1995) 19 Fam LR 173.
In this regard also, because of their imprecision and failure to address relevant issues the Written Submissions are of very little assistance more generally. In fact, they required the expense of yet more precious time that could have been used much more productively by the Court. Instead, the Court was required to fill in the many gaps in the Father’s submissions which do not address relevant authority. Recent and appropriate authority is a standard practice in the provision of submissions – oral and in writing. No relevant, or appropriate, authority was provided in the Father’s Written or oral Submissions. This was a very serious omission.
Added to these comments I must record the following because the omissions were and are so significant.
First, it is a long-recognised duty to the Court by a legal practitioner (Counsel and solicitor) that submissions must be adequately prepared. For example, in Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd, the Court of Appeal of the Victorian Supreme Court held, at [194] (Forrest AJA) (emphasis added):[23]
… where a party wishes to propound a certain legal point at trial, it is appropriate (indeed some may say necessary) for that party to provide as much assistance as it can to the trial judge in determining that issue. That obligation extends not only to submissions but also to the provision of relevant authorities supporting the particular assertion. Simply articulating a position among a raft of other arguments without any considered submissions or analysis of the authorities places an impossible burden upon the trial judge.
[23] Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd (2008) 66 ACSR 325.
Secondly, it has also long been held that where, as here, lawyers hold themselves out as competent (not to mention specialists) in a particular field, it is incumbent upon them to ensure that they are fully conversant, and maintain currency, with relevant authority in that field.[24] Plainly, this did not happen here.
[24] See the discussion by Brooke LJ in Copeland v Smith [2000] WLR 1371 at 1375-6. His Lordship’s discussion also highlighted that not keeping up to date meant, as it did here, that it wasted the Court’s time and resources in canvassing matters that should have been properly put to the Court by Counsel and lawyers. Not to have done so was also “discourteous” to the Court.
In addition to the above, I accept and otherwise adopt the submissions on behalf of the Mother and the ICL.
For these reasons, the recusal Application must be dismissed.
Costs
Regarding costs, I say the following, noting (without repeating) what was said by the Full Court in Stephens v Stephens, set out earlier in these reasons.[25]
[25] Stephens v Stephens (2011) 44 Fam LR 117 especially at [62] – [71] and in relation to indemnity costs at [72] – [73].
First, for the reasons already given, the Application was, in my view, doomed to fail.
Secondly, the absence of proper (or any relevant) authority was, as already stated, a very serious omission by both Counsel (who drafted the submissions) and the solicitor who argued the Application in Court. The lawyers retained by the Father both hold themselves out as expert in family law, and indeed Counsel is highly experienced in the same area. Indeed, this omission (or these omissions) caused yet more work to be done by the Mother’s lawyers as well as by the ICL, and by the Court, to make good this signal deficiency.
Thirdly, the Father’s legal advisers were on notice well in advance of the fact that the Father’s correspondence to the Court and to the ICL was a material and significant “issue” in the proceedings.
Fourthly, the Father’s Written Submissions confirm that certain “assumptions” only were made about the detail of the correspondence in question. It follows that no due or proper diligence was exercised by the Father’s lawyers in checking the Father’s material.
Fifthly, the “foreshadowing” of the recusal Application only occurred at the end of the allocated hearing time for the trial. Notice of the relevance and import of the Father’s correspondence with the Court had been given at least by the Mother prior to the hearing, as noted in the submissions of both the Mother and by the ICL. And in any event “foreshadowing” the recusal Application (as opposed to actually making it) occurred the better part of two days after the ICL’s affidavit was filed in Court; and as already observed, everything remained at the end of the hearing as being “subject to instructions.” Whether viewed as “waiver” or simply inexcusable delay is somewhat moot. On either basis, the actions of the Father’s legal team did not relevantly conform to long-standing legal practice and authority.
Sixthly, it was noted in the course of the hearing, by reference to the Father’s messages to one of the children, that his parents were now funding the litigation on his behalf.[26]
[26] See T 182 – 183.
In my view, the circumstances outlined in these reasons warrant that (a) there be an Order for costs in the Mother’s and the ICL’s favour, and (b) specific figures be given by the Court regarding those sums. At least in so far as (a) is concerned, in my view the principles set out by Sheppard J in Colgate-Palmolive, notably that extenuating circumstances exist to warrant a departure from the usual Order regarding costs, have been well and truly satisfied, namely (albeit somewhat repetitious having regard to how many times these matters have been canvassed earlier in these reasons):
(i)the Father sought to rely on material that he generated,
(ii)his own lawyers confirmed that they only or merely “assumed” certain facts about that material without obviously having checked it,
(iii)the adverse impact on the Mother (and increased cost occasioned by the Application) and the ICL (and the increased cost occasioned by the Application), and
(iv)the adverse impact on scarce Court resources (and other litigants) and the now further delay in finalising the current parenting dispute between the parties.
Accordingly, by reference to the “fee notes” provided to the Court by all parties (as requested by the Court at the conclusion of the hearing of the Application) as well as by reference to Schedule 1 Part 1 of this Court’s Rules, there will be an Order that the Father pay the Mother’s costs, set at $3,500.00.
The Father is to pay the ICL’s costs, set at $5,064.00.
Both of these sums are to be paid within 28 days of the date of these Orders.
In all of the circumstances, notwithstanding the number of significant errors in the preparation of the Father’s case for trial, and the omissions in the Written Submissions filed for the recusal Application, and (regrettably) the lack of, among other things, relevant authority even in oral submissions, I decline to make an Order for costs against the Father’s lawyers. I will leave the matters I have raised for the Father and his lawyers to consider and if necessary to resolve as between themselves.
Procedurally, (a) nothing is to be done until the costs Orders have been paid, and (b) upon payment, the Directions set out in Notation D to the Orders of 21st February shall apply in relation to the future conduct of the matter.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 19 April 2018
Key Legal Topics
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Appeal
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