Dishman & Dishman (No 2)
[2020] FamCAFC 222
•4 September 2020
FAMILY COURT OF AUSTRALIA
| DISHMAN & DISHMAN (NO. 2) | [2020] FamCAFC 222 |
| FAMILY LAW – APPEAL – APPEAL AGAINST COSTS ORDER – Where the appellant husband was ordered to pay part of the respondent wife’s costs of the property settlement proceedings – Weight challenges – Allegation of apprehended bias – No error of fact or law established – Husband seeking to re-agitate issues dealt with in the substantive proceedings – Where findings were open on the evidence – Appeal dismissed – Husband to pay the wife’s costs of the appeal. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) Sch 3, Div 10, r 24.05 |
| Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Dishman & Dishman [2020] FamCAFC 15 Dishman & Dishman (No. 2) [2019] FCCA 2803 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 Housing Commission (NSW) v Tatmar Pastoral Holding Co Pty Ltd and Anor (1983) 53 LGRA 325; [1983] 3 NSWLR 378 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 |
| APPELLANT: | Mr Dishman |
| RESPONDENT: | Ms Dishman |
| FILE NUMBER: | PAC | 6114 | of | 2018 |
| APPEAL NUMBER: | EAA | 42 | of | 2020 |
| DATE DELIVERED: | 4 September 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 11 August 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 March 2020 |
| LOWER COURT MNC: | [2020] FCCA 726 |
REPRESENTATION
| THE APPELLANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Matthews Dooley & Gibson |
Orders
Appeal EAA 42 of 2020 against the orders of a judge of the Federal Circuit Court made on 5 March 2020 is dismissed.
The appellant husband pay the respondent wife’s costs of and incidental to the appeal in the sum of $4,629.11 within forty-two (42) days of the date of these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dishman & Dishman (No. 2) has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 42 of 2020
File Number: PAC 6114 of 2018
| Mr Dishman |
Appellant
And
| Ms Dishman |
Respondent
REASONS FOR JUDGMENT
On 5 March 2020 a judge of the Federal Circuit Court ordered Mr Dishman (“the husband”) to pay $35,000 towards the costs incurred in property settlement proceedings between himself and Ms Dishman (“the wife”). The property settlement proceedings were heard and finally determined on 8 October 2019 by the primary judge.
The husband appeals those orders.
Background
In order to give context to the present appeal, it is helpful to set out some background taken from the reasons of the primary judge delivered on 8 October 2019 in the substantive property settlement proceedings (Dishman & Dishman (No. 2) [2019] FCCA 2803 (“Dishman”)). The husband’s attempted appeal against those orders was not filed and further context to the present appeal is to be found in the appeal reasons for judgment (Dishman & Dishman [2020] FamCAFC 15).
The parties were married in 1984, their relationship having commenced in 1979. They separated in October 2017. There are two children of the marriage, now adults.
The wife commenced the property settlement proceedings in December 2018. The hearing of the property settlement proceedings was fixed to be heard on 23 September 2019. It is apparent from reading the reasons of the primary judge that one of the husband’s principal complaints was an asserted failure by the wife to make proper disclosure, in particular, in relation to the amount of her inheritance. The husband further contended that the wife and her lawyers had failed accurately to describe her legal interest in the parties’ two investment properties.
The primary judge rejected those assertions and found that the husband’s complaints of non-disclosure were baseless (Dishman at [22]–[23]).
In a footnote to [21] of his Honour’s reasons in the substantive property settlement proceedings, his Honour found:
… It must be observed that the husband’s repeated complaints that the wife and her legal representatives failed to give disclosure with respect to the wife’s inheritance or title to the investment properties are baseless. By letter 7 August, 2019 any controversy with respect to the title of the investment properties was authoritatively quelled (see page 5 Affidavit [of the wife’s solicitor] filed 10 September, 2019) and by letter 23 April, 2019 (pages 6-10 of the same Affidavit) and prior to any complaint by [the husband] as to the issue, [the wife’s] legal representatives had given detailed disclosure (including provision of corroborating documents) regarding the wife’s inheritance and the use and application of funds received therefrom. That the husband omitted those letters from his material raising complaint was, at best, disingenuous.
(As per the original)
A request that the primary judge recuse himself was made at the commencement of the final hearing. That application was heard, the primary judge declining to recuse himself. The primary judge afforded the husband a short period of time to enable him to consider his position and the husband thereafter declined to participate in the hearing and withdrew, although, it seems, he remained in court and observed the proceedings (Dishman at [26]–[27]). The hearing continued without cross-examination and on the submissions made on behalf of the wife (at [28]).
The primary judge observed that there was little controversy between the parties as to the composition of their assets and financial resources. His Honour ultimately determined that of the assessed net pool of the parties’ assets, $3,470,833, the wife should receive 51.5 per cent.
The attempted appeal
The husband attempted to appeal the primary judge’s refusal to recuse himself. He submitted a Notice of Appeal on 30 September 2019 which was rejected for filing as he did not pay the requisite court fees after its payment had been deferred at his request. On 5 December 2019 the husband submitted a new draft Notice of Appeal together with an Application in an Appeal seeking to either reinstate the previous Notice of Appeal or to extend the time to file his new draft Notice of Appeal. While the new draft Notice of Appeal did not challenge the property settlement orders made by the primary judge; it followed that if his appeal against the primary judge’s failure to recuse himself was successful it would have the effect of causing the property settlement proceedings to be remitted for rehearing.
That application was made and heard by a judge of the appellate jurisdiction of the Family Court sitting as a single judge. As part of the assessment of whether an extension of time should be given, Ryan J considered the merits of the proposed appeal to determine whether if an extension is not granted, the application of the rules would work an injustice. Her Honour concluded that the husband’s proposed appeal against the primary judge’s refusal to recuse himself would enjoy no prospect of success (at [36]) and the husband’s Application in an Appeal for an extension of time in which to file a Notice of Appeal was dismissed by her Honour on 28 January 2020.
In that decision Ryan J said:
4. On 30 September 2019, the [husband] submitted his Notice of Appeal (EA 97 of 2019) to the Eastern Appeals Registry along with a request for exemption, including deferral of court fees, in effect, seeking to waive or defer payment of the filing fee. The deferral request alone was granted and the [husband] was given written notice that he had 28 days to pay the $1,380 filing fee, which was due by 30 October 2019. The [husband] did not make the payment or request a further deferral. On 1 November 2019, the Appeals Registry informed the [husband] that his Notice of Appeal had been voided pursuant to r 24.05(1) of the Family Law Rules 2004 (Cth) (“the Rules”) and advised that if he wished to pursue an appeal, he would need to file an Application in an Appeal seeking an extension of time to file a new Notice of Appeal. Contrary to the submission by the [husband] today, this is not a question of expediency in the Registry, it is simply a question of standard operating procedures given that there was now no extant appeal. In any event, only then did the [husband] offer to pay the filing fee but, as the Registry correctly informed him, it was too late.
5. On 5 December 2019, the [husband] submitted a new draft Notice of Appeal (EA 132 of 2019) to the Appeals Registry along with this application, requesting either to reinstate his original Notice of Appeal (EA 97 of 2019) or an extension of time to file his new draft Notice of Appeal. Because the effect of r 24.05(1) is that the original Notice of Appeal had not been filed, it cannot be reinstated (whether pursuant to r 22.44 of the Rules or by any other path). So that it is clear, the submission by the [husband] that reg 5 of the Family Law Regulations 1984 (Cth) in effect overrides r 24.05(1), is not accepted. Regulation 5 is not unqualified and it operates subject to directions, which, in my view, includes direction given through the application of the Rules. Thus, the issue is whether the [husband] should be given an extension of time to appeal.
Thus the property settlement orders made by the primary judge remain on foot.
It was apparently also uncontroversial that despite there being no appeal against those orders, the husband had not complied with the orders which included requiring him to pay $350,000 to the wife and discharge mortgages over two properties (Dishman at Order 6(c); the decision of Ryan J at [39]). Other orders were to flow consequentially from those ordered acts.
The hearing of 5 March 2020 and the impugned orders
Turning then to the orders from which this appeal is brought, on 5 March 2020 the primary judge, who heard the property settlement proceedings, made the challenged orders that the husband pay $35,000 towards the wife’s costs of and incidental to those proceedings.
Heard at the same time were two Applications in a Case filed by the husband on 12 November 2019 and 9 December 2019. Both were dismissed by the primary judge. There is no appeal by the husband against the dismissals.
The only matter then for the primary judge’s determination was the wife’s application for costs arising from the property settlement proceedings.
The hearing before the primary judge was conducted in the absence of the husband. The primary judge found that the husband was aware of the hearing date, and noted that the hearing date had been changed to accommodate the husband’s availability (at [10]–[16]).
Although the husband did not appear at the hearing of the costs application he had filed written submission on the issue and, in coming to his decision, the primary judge made significant reference to and dealt with the matters raised in the husband’s submissions.
His Honour set out, quite uncontroversially, the legislative and jurisprudential basis for considering costs in the Family Court. He then considered those aspects of s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”) which were relevant to the parties’ particular circumstances.
In considering the financial circumstances of the parties, his Honour concluded that while both parties were then out of employment, because the husband had failed to comply with the property settlement orders, the wife had been kept out of funds directed to be paid to her whilst the husband retained control of the parties’ assets (at [93]). His honour noted that the husband was also in receipt of the rental income and any tax benefit from those properties which were negatively geared (at [88]).
Next his Honour turned to the conduct of the parties and concluded that the husband’s approach to the litigation including allegations against the wife’s solicitors, in sending repeated emails and harassing the wife’s lawyers, had served to inflate the wife’s costs, while noting that the husband had acted for himself during the proceedings and had not thus borne a consequential costs burden (at [103] and [105]–[106]).
The primary judge also referred to the lack of factual controversy between the parties as to their assets and financial resources nor to the fact that the wife had received a substantial inheritance. His Honour concluded that the husband’s position adopted in the proceedings was doomed to failure and the primary judge found that the husband had been wholly unsuccessful in his application (at [110]).
Relevant too to the primary judge’s conclusion that the husband should pay some of the wife’s costs of the proceedings, was an offer made by the wife’s lawyers to the husband in which she proposed that the assets be divided equally. The primary judge here noted that as the parties had agreed about the assets and their value, the husband was, on receipt of the offer, well able to consider it. It was not accepted. The orders made by the primary judge were more favourable to the wife than the offered settlement. His Honour observed that, as a result, the wife bore the costs of the hearing of the matter. The offer, its terms and the husband’s failure to accept it were referred to by the primary judge as being supportive of the making of a costs order (at [114], [116] and [118]).
Thus the primary judge concluded that the circumstances justified a departure from the usual rule as to costs under s 117(1).
His Honour, having considered the amount of costs claimed by reference to the relevant costs schedule, concluded that there was very little difference as between the costs calculated on a party/party basis and those said to be calculated on an indemnity basis (at [141]). Far from merely accepting the claimed amount, the primary judge considered the individual aspects of the wife’s claimed costs and by reference to Sch 3 of the Family Law Rules 2004 (Cth) (“the Rules”), arrived at a figure which he considered proper in all the circumstances.
The appeal
Before turning to the grounds of appeal, it is necessary to observe that in large part, through the grounds, the husband seeks to re-agitate his contention that the wife failed to make full and proper financial disclosure in the property settlement proceedings and to re-agitate claims that in those proceedings, the wife and/or her solicitor misrepresented the wife’s legal interest in the parties’ two investment properties. Both of those contentions were rejected by the primary judge and cannot be re-agitated here in the guise of a ground of appeal against a costs order.
Further, the husband, through these grounds, attempts to contend that the determination of an Appeal Registrar that his first Notice of Appeal was “void” because the husband failed to pay the required fee was unlawful. The husband contends that this has denied him his constitutional right to have his appeal against his Honour’s refusal to recuse himself heard by a Full Court.
During the appeal hearing, when this issue was raised, the husband said that he had intended to prepare an application for the High Court to “rule” on the correctness of the decision that his Notice of Appeal had not been “filed” by reason of his failure to pay the requisite fee. He agreed that he had not made that application and asked that this judgment be stayed until he had made that application. He also sought leave to make further written submissions on the constitutional point.
I declined to stay or adjourn the finalisation of the appeal, neither would I permit the husband to make further submissions on the constitutional point. However, I indicated that it would take some two weeks to finalise the judgment on the appeal, thus affording him time to make whatever application to the High Court he feels is open to him.
Equally, too, the husband attempts to re-litigate or re-argue his lost contentions as to financial disclosure and the description of the wife’s legal interest in the investment properties cannot form part of this appeal.
The husband raises eight grounds of challenge to the primary judge’s orders. He also filed a Summary of Argument on 17 July 2020 which regrettably does not address the contended grounds of appeal but instead was used by the husband to give voice to his complaints as to the legitimacy of the application of r 24.05 of the Rules and to make criticisms of court staff. To that extent the document will be disregarded. Where the document touches on a ground of appeal it will be considered.
Ground 1
Ground 1 asserts that the primary judge made an error of law in finding that a complaint made by the husband in his submissions on costs was “completely ill founded”.
As noted by the primary judge at [61]–[62], in the husband’s written submissions on the issue of costs, he complained of the wife’s solicitor using “hardball” tactics against him in the litigation and cited a prior determination of the primary judge in a different matter in which his Honour used that expression to describe the conduct of litigation in that case. At paragraph 53 of the husband’s written submissions he argued that he had been the victim of such conduct and particularised in 17 subparagraphs examples of this conduct. The particularised conduct included the wife’s solicitors in: (a) “misleading the court” in relation to the wife’s legal holding in the investment properties; (b) failing to give full and frank disclosure about the amount inherited by the wife; (d) asking to be served with sealed documents and; (g) not informing the husband that a certificate from his cardiologist would be the subject of objection. It is to be observed that included in the litany of complaints about the solicitor’s approach to litigation were: (l) complaints about the primary judge’s reliance on a particular practice direction and; (m) the primary judge “misrepresenting the true nature” of the husband’s concerns about the primary judge’s appearance of impartiality in the recusal reasons.
The primary judge carefully considered the husband’s complaints and apropos his remarks in an earlier case about “hardball” or “scorched earth” litigation, said:
61. … I make clear that complaints raised by the husband at paragraphs 47 to 53 of his submission are completely ill-founded. Therein, the husband has sought to quote a number of comments made by me in an earlier decision relating to costs (Peake & Benedict (Costs)[2014] FCCA 2723). The husband seeks to apportion those comments towards the solicitors for the wife, suggesting that they have played “hardball” or used “scorched-earth litigation” tactics against him…
…
63. I make clear, lest it be the subject of future controversy, that the conduct of the wife’s legal representatives, both former and present, is above reproach. The wife’s affairs have been conducted with aplomb. The matter has been conducted efficiently, courteously, with prompt attention to detail, compliance with Orders of the Court, and all that was required to be done, done properly and well.
(Footnote omitted)
The primary judge’s conclusion was one well open to him on the evidence before him. The barrier to appellate intervention on a challenge to the findings of fact of a primary judge is high and the appellant must show not that another judge would have come to a different finding, but that there was no evidence to support the finding of fact challenged (Edwards v Noble (1971) 125 CLR 296 per Barwick CJ at 304). No error has been shown.
Ground 2
The husband contends that the primary judge erred in law and in fact when considering the conduct of the parties (s 117(2A)(c) of the Act) as part of his Honour’s consideration of costs.
It is to be observed that both in his written submissions on costs and in argument on appeal, the husband referred to him being “punished” for “misconduct”.
The particulars to this ground are intended to make the point that it was the wife whose conduct ought to have resulted in a costs order rather than that of the husband. The husband repeats his complaints about the wife not making “full and frank disclosure” and her asserted misrepresentation as to the legal title of the investment properties (at particulars in Ground 2, predominantly 2(c), (e), (f) and (h)). As I have observed, the issues of disclosure and legal title was determined by the primary judge and were not the subject of an appeal. So much of this ground, as reflects a re-agitation of those complaints made before the primary judge, are not competent appeal challenges.
The conduct to which the primary judge referred in his consideration of the issue of costs was that of the husband in conducting the litigation against a background of almost no factual controversy and in persisting with an application which was, in his Honour’s opinion “doomed to failure” (at [110]).
Particular 2(g) of the husband’s Notice of Appeal asserts that the primary judge erred in law by failing to afford the husband, as a self-represented litigant, assistance on procedural matters. It is difficult to understand what assistance the primary judge ought to have afforded him given that the husband failed to attend the costs hearing. In any event, there was no challenge to the primary judge’s finding that the husband knew of the court date, it having been changed to meet his convenience, and he did not appear.
Particulars 2(a), (b), (j) and (k) contend, in summary, that the primary judge failed to “deal with” the husband’s submissions on the issue of costs and that his Honour failed to give adequate reasons for “peremptorily” dismissing the husband’s submissions.
These particulars in fact challenge his Honour’s fact finding, and argue that had his Honour considered the husband’s submissions, he would not have come to the same conclusion.
The obligation of a judge to give adequate reasons is well-known (Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267). The reasons must enable the parties to understand the basis of the judge’s decision and the extent to which the parties’ arguments have been accepted (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]–[59]). However, the judge is not obliged to mention every submission or fact relied upon by the losing party (see Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]; Housing Commission (NSW) v Tatmar Pastoral Holding Co Pty Ltd and Anor (1983) 53 LGRA 325 per Mahoney JA at 332).
A reading of his Honour’s reasons makes it abundantly clear that he had very close regard to the husband’s written submissions on costs, and said as much at [42] of the reasons.
Finally, in particulars 2(d), (i) and (l), the husband complains that the primary judge erred in failing to require the wife to make an Application in a Case for costs rather than relying on the prayer for costs included in her Initiating Application. It was on this application that the wife moved and his Honour made the ordered costs. The primary judge at [44] and [46] rejected the husband’s contention that his Honour had no power to deal with the wife’s costs application absent an Application in a Case seeking costs. The primary judge correctly rejected the husband’s contentions on this point.
No error has been demonstrated.
Ground 3
This ground asserts that in taking into account the wife’s offer to settle with the husband as a relevant matter on the question of costs, the primary judge erred. It is said that the primary judge failed to consider the husband’s submissions on the point and did not take into account the husband’s letter in response to the wife’s offer. It is unnecessary to repeat what has already been said in relation to the husband’s assertion that the primary judge failed to take his submissions into account.
The ground continues and asserts that the primary judge was wrong when he concluded that a letter of offer from the wife’s solicitors to him sent on 8 November 2018 was an offer to settle and further complains that the primary judge did not take into account his letter of response sent on 16 November 2018. The letter of offer and the husband’s response are attached to the affidavit filed by the wife’s solicitor which was before the primary judge on the costs application. The husband’s letter of 16 November 2018 clearly rejected the wife’s offer. The husband also argues that the primary judge did not consider his subsequent reply of 28 November 2018 to the offer. In his oral argument, the husband accepted that that letter was not before the primary judge on the costs application. Thus, the husband cannot now raise it on appeal and is bound by the conduct of his case at trial (Metwally v University of Wollongong (1985) 60 ALR 68).
The submissions do not say how the primary judge was wrong to conclude that the letter comprised an offer of the relevant kind. The husband’s written costs submissions before the primary judge complain that the wife’s offer was not made under Div 10 of the Rules. Those rules provide a process identical to that adopted by the wife’s solicitor.
The wife offered to settle the property settlement proceedings by equally dividing the parties’ assets. The offer was made before the proceedings commenced. The offer was rejected by the husband. The primary judge’s order was that the wife receive 51.5 per cent of those identified assets. His Honour concluded that the offer and its rejection was a matter of significance (at [118]). That conclusion was open to him.
No error has been established.
Ground 4
Ground 4 contends that both the wife and the primary judge “have failed to establish the [causal] link between the [husband’s] alleged misbehaviour and the resultant unnecessary costs claimed to have been incurred”.
The making of an order for costs is guided by the overriding principle that each party to proceedings should pay his or her own costs (s 117(1) of the Act). That principle is however subject to circumstances in which, in the Court’s opinion, there are circumstances that justify making an order as to costs. Further the Court must consider the matters referred to in s 117(2A) of the Act in considering what order should be made. It was to those matters that the primary judge turned his attention in determining that a costs order should be made. There was no assertion of “misconduct” by the husband albeit, the way in which the husband conducted the litigation was the subject of criticism. To assert there must have been a conclusion of “misconduct” is to misunderstand the provisions of the section and nothing in the primary judge’s reasons support the assertion.
No further detail attends the ground. His Honour’s reasons clearly explain how he concluded that the husband’s pressing of a claim which was “doomed to failure” and the number of Applications brought by the husband all contributed to an extra costs burden on the wife. This ground is not made out.
Ground 5
Equally, Ground 5 contains the bare assertion that the primary judge “erred in fact and in law” in concluding that the husband had been wholly unsuccessful in the proceedings. Neither how the primary judge is said to have fallen into error nor what errors of fact his Honour made are identified and for the reasons above, this ground will be dismissed.
Ground 6
The husband challenges various aspects of the wife’s claimed quantum of costs and by this ground cavils with various aspects of them. For example he contends that the time claimed to prepare to make submissions on the husband’s recusal application was unnecessary.
Having come to the view that the circumstances were such that there should be an order for costs made, his Honour considered the wife’s detailed costs claim.
It is to be observed that the wife’s claim of costs of $35,000 was not the entirety of her costs and, as he was obliged to do, the primary judge satisfied himself that the amount claimed was appropriate.
That conclusion was open to him and no error has been demonstrated.
Grounds 7 and 8
In these challenges, the husband asserts apprehended bias. In both grounds the husband asserts that apprehended bias attends the orders.
Ground 7
The fair-minded and properly informed lay bystander might apprehend that the primary judge has impermissibly used the costs proceedings to punish and unnecessarily tarnish the [husband’s] reputation.
Particulars
(a) Paragraphs 34, 59, 61, 70, 75 – 77, 92, 111;
(b) Transcript of proceedings of 12 March, 18 June and 12 August 2019;
(c) Recusal Reasons published on 8 October 2019;
(d) Property Reasons published on 8 October 2019.
(As per the original)
Ground 8
The fair-minded and properly informed lay bystander might apprehend that the primary judge might not have brought an unprejudiced mind to the determination of the costs application.
Particulars
(a) The following transcript of proceedings:
(i) 12 March 2019;
(ii) 18 June 2019;
(iii) 12 August 2019:
(iv) 23 September 2019;
(v) 11 February 2020;
(vi) 5 March 2020;
(b) The primary judge's Reasons published on:
(i) Recusal and Property Reasons of 8 October 2019;
(ii) Costs Reasons of 31 March 2020.
(As per the original)
Before turning to the issue of apprehended bias, it is necessary to correct the husband’s contention that he was “punished” and his reputation “tarnished” by the making of a costs order. The matters to which primary judge referred in determining to make a costs order were directed to whether the circumstances made it appropriate to depart from the usual position as set out in s 117(1) of the Act. Costs are compensatory not punitive. In Latoudis v Casey (1990) 170 CLR 534 at 543 Mason CJ said:
… If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings…
I do not understand how an order for costs when considered against the primary judge’s reasons could on any view give rise to the impression that the husband’s reputation was tarnished.
These challenges must be considered in the context too that there was no appeal against the primary judge’s refusal to recuse himself.
It is assumed, because the husband’s Summary of Argument does not address this point, that the apprehension of bias arises not from anything said by the primary judge but from the orders themselves.
While perhaps not usually the basis for an assertion of apprehended bias, the relevant principles are applicable to a decided case.
The test for establishing apprehended bias is well known. It must be established that the hypothetical person, the “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question” to be decided (Ebner v Official Trustee in Bankruptcy (2000)
205 CLR 337 (“Ebner”) at [6]).
In Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 the New South Wales Court of Appeal said:
[232] … that the hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally.
Further, in Ebner, the plurality of the High Court said:
7. … Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
(Emphasis in original)
The hypothetical observer would be taken to have read the primary judge’s reasons for decision.
While the matter being considered was an assertion of actual rather than apprehended bias, in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 von Doussa J said in relation to the considerations:
38. … Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party’s interests such as a hostile attitude throughout the hearing or... an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.
(Citations omitted)
The articulated challenge is a serious one yet the husband makes little or no attempt to support the challenge. The particulars to each ground in which he references whole days of transcript and the entirety of the primary judge’s reasons, is an invitation to an appeal court to rummage around in the evidence to find support for an inarticulate ground.
In Bahonko v Sterjov (2008) 166 FCR 415 the Full Court of the Federal Court said:
3.Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error… This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
(Citations omitted)
The husband has neither made good his challenges in these grounds or any other and the appeal will be dismissed.
Costs
At the conclusion of the appeal hearing submissions were made as to costs, the wife’s solicitor seeking an order that the husband pay the wife’s costs of the appeal in the event that it was dismissed. The costs sought are calculated according to the Sch 3 of the Rules and amount to $4,629.11. The husband did not oppose the making of the order and, having been served with the wife’s costs documents and made no submission as to the claimed amount. Thus an order for costs will be made as sought by the wife.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 4 September 2020
Associate:
Date: 4 September 2020
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