Dobey & Shey (No 2)
[2019] FamCAFC 171
•4 October 2019
FAMILY COURT OF AUSTRALIA
| DOBEY & SHEY (NO. 2) | [2019] FamCAFC 171 |
| FAMILY LAW – APPEAL – DISQUALIFICATION – Appeal against dismissal of recusal application – Apprehended bias – Prejudgment - Comments by judge as to disposition of the case without regard to the evidence relied on by the other party – Comments by judge made in the absence of a party – Failure to disclose ex parte comments – Appeal allowed – Remitted for rehearing. FAMILY LAW – APPEAL – PROPERTY – Interim spousal maintenance – Interim distribution of property – Where the success of the disqualification appeal means that the orders will be set aside – Appeal rendered otiose – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Costs certificates to issue to both parties. |
| Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 |
| Antoun v The Queen (2006) 80 ALJR 497; [2006] HCA 2 Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Malak & Malak (2016) FLC 93–718; [2016] FamCAFC 114 Morris v R (1987) 163 CLR 454; [1987] HCA 50 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth (1991) 173 CLR 194; [1991] HCA 43 |
| APPELLANT: | Mr Dobey |
| RESPONDENT: | Ms Shey |
| FILE NUMBER: | SYC | 2915 | of | 2018 |
| FIRST APPEAL NUMBER: | EA | 159 | of | 2018 |
| SECOND APPEAL NUMBER: | EA | 17 | of | 2019 |
| DATE DELIVERED: | 4 October 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Watts JJ |
| HEARING DATE: | 25 September 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 November 2018 19 November 2018 |
| LOWER COURT MNC: | [2018] FCCA 3900 [2018] FCCA 3808 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Bridger |
| SOLICITOR FOR THE APPELLANT: | Joanna F S Moy, Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Lethbridge SC |
| SOLICITOR FOR THE RESPONDENT: | Doolan Callaghan Family Lawyers |
Orders
That the appeal EA 17 of 2019 against the order dated 16 November 2018 (disqualification) be allowed.
That Order 1 of the orders dated 16 November 2018 be set aside.
That the orders dated 19 November 2018 be set aside.
That the primary judge be disqualified from further hearing the proceedings.
That the appeal EA 159 of 2018 against the orders dated 19 November 2018 be dismissed.
That the proceedings be remitted for rehearing in the Federal Circuit Court.
That there be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the rehearing ordered.
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 Dobey & Shey (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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 159 of 2018 & EA 17 of 2019
File Number: SYC 2915 of 2018
| Mr Dobey |
Appellant
And
| Ms Shey |
Respondent
REASONS FOR JUDGMENT
On 19 November 2018 in proceedings between Mr Dobey (“the husband”) and Ms Shey (“the wife”) a judge of the Federal Circuit Court made interim orders for spousal maintenance and a partial property settlement order.
While the husband has sought leave to appeal the making of the financial orders, he has also appealed her Honour’s refusal, on 16 November 2018, to recuse herself from continuing to hear the matter because of comments made by her which, it was said, raised an apprehension of bias. The apprehended bias is said to have arisen from two aspects of the primary judge’s conduct, in particular; the first being comments the primary judge made about the disposition of the case to senior counsel for the wife in the absence of the husband and those appearing for him; and secondly, comments made at the commencement of the hearing about the disposition of the case in the presence of all relevant participants. The husband’s application that the primary judge recuse herself from hearing the case was based on the second tranche of comments. It was only when he obtained the transcript of the hearing for the purpose of this appeal that he discovered the remarks made before he joined the hearing. We do not know why the first set of remarks were not brought to the attention of counsel for the husband, they should have been. However, as we must consider the whole of the circumstances, both sets of comments will be considered.
An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal, must deal with the issue of bias first. This is because actual or apprehended bias strikes at the validity of the trial process and its outcome. Where a defect in the administration of justice has been found to have occurred, even if a judge is found to be correct, the orders must be remedied (Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 611) (“Concrete”). Unless this is done, the impression created by the course that was followed remains and inevitably adversely affects public confidence in the administration of justice (Antoun v The Queen (2006) 80 ALJR 497 at 499) (“Antoun”).
Facts
By way of context, the Federal Circuit Court operates a docket case management system and the parties’ proceedings had been allocated to the primary judge. On 11 July 2018, the primary judge made directions for the conduct of the interim hearing, in relation to disclosure generally and asset preservation orders. In accordance with those directions, the wife’s application for interim spousal and financial orders came before the primary judge for hearing on 16 November 2018. The wife complied with the timetable for filing documents and at the hearing she sought an order for $1,255 per week as spouse maintenance and for a partial property order of $43,000. The application was contested and the husband had counsel briefed to appear for him. The husband, who lives and works abroad, did not file his documents on time. Some of his documents were filed the day before the hearing and others were submitted at the commencement of the hearing.
Comments made in the absence of the husband and his lawyers
The hearing commenced at 10:30 am and counsel for the husband was not present. Senior counsel for the wife informed the primary judge that the husband’s counsel was appearing before the Full Court. Her Honour’s recorded comments in the transcript indicate a degree of dissatisfaction at being required to wait on counsel’s convenience.
Senior counsel for the wife informed her Honour that those instructing her had been served with a large amount of affidavit and other material the day before but notwithstanding that, indicated that she wished the matter to proceed.
Her Honour indicated that she was ready to commence the hearing and said:
HER HONOUR: I don’t have any of this large volume of material that the father – the husband has filed. It’s amazing, isn’t it, when the parties separate, and suddenly you can’t do what you did when you were together. He earns an extraordinary amount of money, doesn’t he?
MS CHRISTIE: More than your Honour actually knows ‑ ‑ ‑
HER HONOUR: Yes.
MS CHRISTIE: ‑ ‑ ‑ because he has got an increase in pay.
HER HONOUR: Good on him. That’s fantastic.
MS CHRISTIE: It is.
HER HONOUR: So guess what? His wife and children are going to be supported as they always have been. That has been this relationship, isn’t it.
MS CHRISTIE: It has been.
HER HONOUR: Yes, lay down misere. That’s what we’ve got on the other side. Very displeased, and I apologise to your client for that rudeness and discourtesy shown by Ms Bridger. How dare she. How dare she. And if she doesn’t turn up at 12 o’clock, I just might do it on an undefended basis anyway.
(Transcript 16 November 2018, p. 2 line 42 to p. 3 line 19)
(Emphasis added)
It is the italicised words which the husband says gave rise to the apprehension of bias.
Comments made at the commencement of the hearing
Her Honour then adjourned at 10:33 am and returned at 10:41 am when counsel for the husband was present. Counsel apologised for not appearing earlier and explained a matter in which she was briefed had been listed urgently in the Full Court.
The matter then proceeded and counsel for the husband attempted to tender the bundle of documents to which senior counsel for the wife had earlier referred.
Her Honour said, apropos that bundle of documents:
HER HONOUR: Well, I need to see that because I’m struggling to see what the argument is here.
MS BRIDGER: All right. Thank you.
HER HONOUR: I would have thought this was a lay down misere for the wife.
MS BRIDGER: Well, your Honour, in my submission, if you’re going to prejudge it, I would ask your Honour to disqualify yourself.
(Transcript 16 November 2018, p. 4 lines 39-47)
(Emphasis added)
Her Honour said, in response to this application:
HER HONOUR: Did you hear what I said? I would have thought this was. I did not say “it is”. It’s up to you to satisfy me it’s not. I haven’t read your material.
MS BRIDGER: The wife carries the onus as far as I’m aware, your Honour.
HER HONOUR: I would have thought, given what I have read, that the husband has the capacity to pay this woman the money she seeks because he has always done it, but I haven’t yet had the chance to read your client’s exhibits - - -
MS BRIDGER: Thank you, your Honour.
HER HONOUR: ‑ ‑ ‑ because they weren’t on the court file.
MS BRIDGER: Sure. Well, your Honour, could I hand up to your Honour the resworn affidavit which has been provided. It was uploaded to the portal, I’m told, on the date it was sworn which was yesterday. The first affidavit was uploaded to the portal and a financial statement. And I understand that you were given a case outline sworn in, your Honour.
HER HONOUR: No, I don’t have a case outline.
MS BRIDGER: Sorry. Well, then I will hand it up to your Honour.
HER HONOUR: I don’t have a case outline.
MS BRIDGER: Thank you.
HER HONOUR: I have nothing.
MS BRIDGER: Thank you.
HER HONOUR: What do you say it is, that the wife has a capacity to work or ‑ ‑ ‑
MS BRIDGER: Your Honour, we say that she hasn’t exercised her earning capacity, and I will take you through it.
HER HONOUR: Thank you for that. And then if I disagree with that and say that she is a spouse who fulfils, on an interim basis, the threshold under section 72 of the Act, does your client have a capacity to pay the maintenance?
MS BRIDGER: We say no.
HER HONOUR: I beg your pardon?
MS BRIDGER: We say no.
(Transcript 16 November 2018, p. 5 lines 1-45)
(Emphasis added)
Again, it is the words in italics that it is submitted gave rise to the apprehension of bias.
The primary judge retired to read the documents and on her return, counsel for the husband remade the application that her Honour recuse herself.
Counsel said:
MS BRIDGER: …Your Honour, when you came onto the – when you called the matter, you said words to the effect:
I thought it would be a lay down misere for the wife. It is obvious the husband has the capacity to pay because he always has.
Your Honour ‑ ‑ ‑
HER HONOUR: From the material I read.
(Transcript 16 November 2018, p. 8 lines 12-20)
After referring to the test for apprehended bias derived from cases such as Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”), counsel for the husband said:
MS BRIDGER: …And, in my submission, by informing, your Honour, that:
I thought it would be a lay down misere for the wife –
and –
It’s obvious the husband has capacity to pay because he always has –
your Honour, in my submission, brings to the forefront that there is, to the fair minded, reasonable observer that there is a possibility that your Honour has not, and will not bring an impartial mind to the resolution of the dispute, and that you have, as it were, prejudged the matter by reading the material that you have already read.
HER HONOUR: The material that I had read at that time?
MS BRIDGER: Had read.
HER HONOUR: Yes.
MS BRIDGER: Irrespective of whether you had read that material or not, to say those words, in my submission, your Honour, causes – to the fair-minded lay observer – a distinct possibility, your Honour, that you may not bring an impartial mind to the resolution.
(Transcript 16 November 2018, p. 8 line 39 to p. 9 line 15)
Having heard the husband’s counsel on the application, the primary judge sought submissions from senior counsel for the wife who, after referring to the appropriate principles guiding such a decision said:
MS CHRISTIE: … To observe, as your Honour did that, “Based on the material that I have read,” and making quite plain the basis upon which your Honour formed the view that you formed, it would appear that the husband has the capacity to support the wife because he has always done so.
HER HONOUR: That’s his case that he has always made.
MS CHRISTIE: Correct.
HER HONOUR: That’s what he says in his material. …
(Transcript 16 November 2018, p. 9 lines 33-43)
Senior counsel for the wife concluded:
MS CHRISTIE: … Accordingly, there is nothing in what your Honour observed which should cause either an objective or a subjective bystander, appraised of enough of the facts, to think that your Honour had prejudged the matter. …
(Transcript 16 November 2018, p. 10 lines 2-4)
The application was refused
The primary judge delivered reasons ex tempore and refused the application. The gravamen of her Honour’s reasons for so doing are as follows:
7.As Ms Christie said, I have heard this matter before. I have already made orders. It is in my docket. I am familiar with it. I have knowledge of it and, for those reasons, I do not see that the lay observer would apprehend, on a reasonable basis, that I had prejudged the matter. I was merely stating what the facts of the matter as I had then read them simply were and how I would conduct the hearing before me.
Thus the hearing continued with her Honour ultimately making the interim financial orders which are now impugned on appeal.
The approach to apprehended bias
To found a recusal it must be established that a “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 [6]). To satisfy that test, the applicant must first identify the matter that it is said might lead the judge to not bring an impartial mind to the resolution of the issue (Ebner [8]) and, secondly the applicant must demonstrate a logical connection between the identified matter and the possibility that the judge might depart from impartial decision making (Ebner [8]).
As to the characteristics of the hypothetical observer, in Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [232] the New South Wales Court of Appeal said:
[T]he 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.
Such a person should not therefore be taken to be completely unaware of the way in which cases are brought to trial and tried (Concrete at [177]).
Furthermore, and as the primary judge alluded to, it is well settled that “[j]ust as the judge should, to a proper extent, listen, so the judge should, to a proper extent, express any tentative views” (Antoun at [32]). Where these views are couched appropriately, at the proper time and in due sequence, no reasonable apprehension of bias will arise (Antoun at [27]). Even when the views are expressed using strong and forthright language; preferably where parties are legally represented and counsel are to respond in similar fashion, the judge may continue to hear the case. However, “[a] line is drawn between forthright and robust indications of a trial judge’s tentative views on a point of importance in a trial and an impermissible indication of prejudgment” (Antoun at [29]).
Preliminary views should be expressed tentatively
As has been alluded to, the primary judge determined the recusal application without informing counsel for the husband about the remarks she made before counsel first appeared. As the first tranche of remarks were undoubtedly relevant to that application, we do not understand why the judge did not bring them to counsel’s attention. Failing that, as best she could, senior counsel for the wife should have filled the breach and at least suggested that the recusal application not proceed until counsel for the husband had reviewed a record of what had taken place in her absence. The consequence of their failing to do so is that the application was determined on a false premise; namely an incomplete statement of the known facts. It made the hearing a somewhat futile exercise and her Honour’s reasons manifestly inadequate. There is no doubt that the husband should have been given the opportunity to address the cumulative effect of her Honour’s remarks and the failure to afford him that opportunity was procedurally unfair.
Turning then to the remarks, the hypothetical observer would have understood that because of her prior involvement with the case, the primary judge had some limited understanding of the parties’ positions. The same observer would also know that when the primary judge made the “lay down misere” and the “so guess what” remarks, she had read the wife’s evidence relied on in the application and had no idea about why the husband said the wife’s application should be dismissed. A tentative view by a judge given in the knowledge of only one party’s evidence is unlikely to be persuasive of anything of value and would have occasioned the hypothetical observer real disquiet about whether the judge was interested in anything the other party might have to say. There can be no doubt that her Honour’s remarks were made out of sequence and prematurely.
In the absence of counsel for the husband, her Honour’s comments about the strength of the wife’s case were couched in strikingly different terms from those used by her Honour when she returned to that issue when both counsel were present. Of course they suffered the same misfortune in that they were expressed without regard to the husband’s material, but that is not fatal. This is because at that time, her Honour’s words implied a tentative conclusion. We point to the words used by her Honour: “I would have thought this was a lay down misere”. The element of doubt included in expressing those views would lead the hypothetical observer to understand it was a tentative view. That impression would have been reinforced when her Honour adjourned to read the husband’s material and by her level of engagement with the arguments advanced on his behalf.
However, as senior counsel who appeared for the wife on the appeal quite properly conceded, had counsel appearing for the husband been informed of the full extent of her Honour’s comments about the wife’s case, it would have strengthened the application for recusal, and, as he said “we would not be here”.
Nonetheless, it was argued for the wife that when the proceedings are considered as a whole, it is clear that the husband was given a proper opportunity to be heard, thus, looked at in that context, her Honour’s words would not give rise to the necessary apprehension. We do not agree. There was in our opinion nothing tentative about the conclusion expressed by her Honour to senior counsel for the wife in the absence of counsel for the husband. Her Honour’s words made it as clear as one possibly could that the wife’s application would be successful. The emphatic and unambiguous terms used afford no other interpretation. They would lead the hypothetical observer to apprehend that her Honour had predetermined the outcome and the process which followed would not have removed that impression.
We are fortified in this conclusion by the fact that, even though the primary judge knew that the husband had retained counsel and she had not read the evidence upon which he relied, she thought it was appropriate to declare the outcome of the case in the absence of those appearing for the husband. Unless a matter is to be properly heard in the absence of a party, discussions with a party in the absence of the other party should be constrained and go only to anodyne matters such as those relevant to how and when the matter might proceed. Where the conversation extends to include the relative merits or strengths of issues yet to be decided, a line is crossed. It does not matter by whom the conversation is initiated. Such conversations should not occur and cut to the heart of open justice. They immediately raise the spectre of apprehension of bias and/or lack of procedural fairness.
Contrary to the submission by senior counsel for the wife, we see no valid distinction between Malak & Malak [2016] FamCAFC 114 (“Malak”) and this case. As the Full Court made plain in Malak, the judge’s comments made at the start of the hearing, in the absence of the other party and without knowledge of that party’s evidence, would have been sufficient to disqualify the judge. Merely because those initial transgressions of procedural fairness were compounded by subsequent events in Malak, does not detract from the seriousness of what happened at the outset.
In our view, the ex parte nature of her Honour’s communication concerning the disposition of the case would only have increased the apprehension of bias. This is because the hypothetical observer would understand that this form of communication is antithetical to the basic rules of procedural fairness.
The totality of the circumstances would lead the hypothetical observer to conclude that her Honour’s mind was not open to persuasion and that she had already concluded the outcome.
Conclusion and costs
The husband has established that the primary judge should have recused herself and the recusal appeal will be allowed and the primary judge disqualified from further hearing the case.
Following the establishment of special leave to appeal to the High Court, it is generally accepted that intermediate courts of appeal should be regarded as the final court of appeal (Morris v R [1987] HCA 50; 163 CLR 454 at 475; Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth [1991] HCA 43; 173 CLR 194 at 217-218). This is particularly significant when the effect of the appeal means that there has been no hearing on the merits at first instance, as has occurred here. The effect of this is that we consider it would be undesirable to re-exercise and the appropriate remedy is for her Honour’s orders to be set aside and the proceedings remitted for rehearing as soon as the Federal Circuit Court can accommodate. It is understood that this is likely to occur within a matter of weeks. We are acutely conscious of the difficulties this is likely to occasion for the wife and the legal expenses and stress this must create for both parties. Unfortunately, there is no other option.
Because the interim financial orders of 19 November 2018 will be set aside in the recusal appeal, the appeal against those orders is otiose and it will be dismissed.
In the event the recusal appeal was successful, the parties agreed there should be no order as to costs. It was their common position that the elements for certificates under the Federal Proceedings (Costs) Act 1981 (Cth) were satisfied and each of them should receive certificates for the appeal and remitted hearing. We agree and orders will be made accordingly.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Watts JJ) delivered on 4 October 2019.
Associate:
Date: 4 October 2019
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