Dunwell & Dunwell
[2011] FamCAFC 2
•18 January 2011
FAMILY COURT OF AUSTRALIA
| DUNWELL & DUNWELL | [2011] FamCAFC 2 |
| FAMILY LAW - APPEAL – Application for disqualification – whether the trial Judge erred in dismissing an application to disqualify himself from further hearing proceedings for a restraining order against solicitors acting for the appellant wife in property proceedings – where the appellants had sought that the trial Judge be disqualified due to an apprehension of bias on the basis of prejudgment – where it was found that apprehension of bias on basis of prejudgment by the trial Judge was not established – appeal dismissed. FAMILY LAW - APPEAL – Application to extend time to file an application for leave to appeal – extension of time granted. FAMILY LAW - APPEAL – Application for leave to appeal – where the appellants sought that the trial Judge extend the time for the filing of an affidavit and defer the delivery of judgment in relation to the application for an extension of time to file the affidavit – whether the trial Judge erred in his decision to dismiss the appellants application – application for leave to appeal dismissed. FAMILY LAW - COSTS – appellants ordered to pay the respondent’s costs of and incidental to both the appeal and the application for leave to appeal. |
| Family Law Act 1975 (Cth) |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Australian Institute of Judicial Administration, Guide to Judicial Conduct (Second Edition), 2007 |
| 1ST APPELLANT: | Mrs Dunwell |
| 2ND APPELLANT: | X Firm |
| 3RD APPELLANT: | Mr V |
| 4TH APPELLANT: | Ms J |
| RESPONDENT: | Mr Dunwell |
| FILE NUMBER: | SYC | 8682 | of | 2007 |
| FIRST APPEAL NUMBER: | EA | 64 | of | 2010 |
| EA | 79 | of | 2010 |
| DATE DELIVERED: | 18 January 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Finn, May and Thackray JJ |
| HEARING DATE: | 22 July 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 May 2010 14 April 2010 |
| LOWER COURT MNC: | [2010] FamCA 433 [2010] FamCA 499 |
REPRESENTATION
| COUNSEL FOR THE 1ST, 2ND, 3RD AND 4TH APPELLANTS: | Dr Harper SC Mr Gould |
| SOLICITOR FOR THE 1ST, 2ND, 3RD AND 4TH APPELLANTS: | X Firm |
| COUNSEL FOR THE RESPONDENT: | Mr Kearney |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Kelly |
Orders
The appeal against the orders made on 24 May 2010 be dismissed.
The time for filing an application for leave to appeal Orders 1 and 2 of the orders made on 14 April 2010 be extended to 7 July 2010.
The application for leave to appeal Orders 1 and 2 of the orders made on 14 April 2010 be dismissed.
The appellants pay the respondent’s costs of and incidental to the appeal against the order made on 24 May 2010 and to the application for leave to appeal the orders made on 14 April 2010 (including the application for an extension of time to file the application for leave to appeal).
IT IS NOTED that publication of this judgment under the pseudonym Dunwell & Dunwell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA 64 of 2010
EA 79 of 2010
File Number: SYC 8682 of 2007
| Mrs Dunwell |
1st Appellant
And
| X Firm |
2nd Appellant
And
| Mr V |
3rd Appellant
And
| Mrs J |
4th Appellant
And
| Mr Dunwell |
Respondent
REASONS FOR JUDGMENT
Finn J
Before this Court for determination are:
·an appeal against an order made by Le Poer Trench J on 24 May 2010 whereby his Honour dismissed an application seeking that he should disqualify himself from further hearing certain proceedings; and
·an application to extend time to file an application for leave to appeal, the application for leave to appeal (if the extension of time be granted) and an appeal (if leave to appeal be granted) against orders made by Le Poer Trench J on 14 April 2010 whereby he refused an extension of time for the filing of an affidavit, and he also refused to defer delivering judgment in relation to the application for an extension of time to file the affidavit in question.
The appeal against the order of 24 May 2010
Background
The background to the appeal against the order of 24 May 2010 is that property proceedings were pending between a husband and a wife in the Family Court of Australia. The proceedings had been “case-managed” by Le Poer Trench J and had not had a final hearing.
On 7 December 2009 the husband filed an application seeking to restrain the wife from continuing to instruct her solicitors (“X Firm”) to act for her in the property proceedings. The husband’s application was amended on 24 December 2009 to add as respondents to the application for the restraining order, the company through which the solicitors, X Firm, carry on business, and also two named solicitors, Mr V and Ms J (who are principals or employees of X Firm). (The solicitors’ company and the two solicitors are hereafter referred to as “the wife’s solicitors”.)
As is more fully explained in the reasons for judgment of May J, the reasons for the husband’s application to restrain the wife’s solicitors from further acting in the property proceedings related to correspondence which the wife’s solicitors had engaged in with certain American lawyers, who were acting in matrimonial proceedings for the wife (“Mrs G”) of a business associate of the husband (“Mr G”). In the course of that correspondence the wife’s solicitors had in a letter dated 11 May 2009 canvassed the possibility of an exchange of information between themselves and the American Lawyers for the benefit of both wives. The full text of that letter is set out in the reasons for judgment of May J.
On 8 March 2010 Le Poer Trench J commenced hearing the husband’s application for the restraining order in relation to the wife’s solicitors. The hearing resumed on 10 March 2010, and at the end of that day arrangements were made for the hearing to resume on 12 April 2010.
However, on 6 April 2010 an application was filed on behalf of the wife by her solicitors, X Firm, and also on behalf of the wife’s solicitors themselves, seeking that Le Poer Trench J disqualify himself “from further hearing these proceedings”. It can be assumed that “these proceedings” was a reference to the proceedings for the restraining order in relation to the wife’s solicitors.
On 12 April 2009 the wife filed an affidavit in support of her application that his Honour disqualify himself. Annexed to that affidavit were the transcripts of the hearings before his Honour on 8 and 10 March 2010. In her affidavit the wife asserted that certain matters arose and things were said at those hearings which caused her to be concerned “that [the husband’s] Application will not be determined fairly by [h]is Honour, with full consideration given to all the evidence before him” and “that [h]is Honour has formed views about the matter without hearing all the evidence”. The matters of concern to the wife arising from the transcripts of the hearings were then detailed in her affidavit and are set out later in these reasons.
On 13 April 2010 submissions prepared by Senior Counsel for the wife and her solicitors in support of the application that his Honour disqualify himself were filed, and on 14 April 2010 submissions prepared by Senior Counsel for the husband seeking the dismissal of the application for his Honour to disqualify himself were filed. On that day (14 April 2010) his Honour heard the disqualification application, and reserved his decision.
On 24 May 2010 his Honour made an order dismissing the disqualification application and delivered reasons in relation to his order. I will refer later to the content of his Honour’s reasons, although I would explain at this stage that he annexed to his reasons the written submissions made to him by Senior Counsel for the husband, but not the written submissions made to him by Senior Counsel for the wife and the wife’s solicitors.
On 3 June 2010 the wife and the wife’s solicitors filed this appeal against his Honour’s order made on 24 May 2010.
On 9 June 2010 his Honour ordered that the proceedings for the order restraining the wife’s solicitors, be stayed pending the determination of this appeal.
Overview of these reasons
By the first of their five grounds of appeal the appellants complain that in his reasons for judgment his Honour did not adequately describe or address the specific matters on which they had based their application that he should disqualify himself, nor did he adequately address their submissions in support of their application. By their second ground of appeal they complain that his Honour did not apply the relevant principles (to which he made reference in his reasons) to the matters which it was asserted would either alone or cumulatively, require his disqualification on the basis of an apprehension of bias.
I consider that there is some substance in these complaints contained in the first two grounds of appeal, although that conclusion on my part would not necessarily lead me to the further conclusion that the appeal must ultimately succeed.
In Ebner v Official Trustee in Bankruptcy; Cleane Pty Ltd v ANZ Banking Group Ltd (2000) 205 CLR 337 Gleeson CJ, McHugh, Gummow and Hayne JJ explained that the application of the apprehension of bias principle in a case where the disqualification of a judge is sought on the basis that he or she might not bring an impartial mind to the determination of the case, requires the following two steps:
8. … First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits …
In the disqualification proceedings before his Honour the appellants had certainly endeavoured to identify the matters of concern to them in his Honour’s approach or observations. This had been done in the wife’s affidavit filed in support of the disqualification application and in her Senior Counsel’s written submissions filed for purposes of the hearing of that application and then also in his oral submissions to his Honour at the hearing. Although there is not, in my view, complete consistency between the affidavit and the written submissions in the description of the complaints, it would nevertheless have to be said that the appellants had endeavoured to satisfy before his Honour the first step explained in the passage from Ebner cited above. (Whether the second step in Ebner had been satisfied is not presently relevant.)
As already mentioned, the first of the appellants’ complaints on this appeal is that his Honour did not identify and address each of the matters which might lead to an apprehension that he would not decide the case for the restraining order fairly.
It has to be acknowledged that his Honour’s reasons were largely directed to the authorities on which both sides had relied in their written submissions to him, and that to the extent that he dealt with the appellants’ specific complaints, he did so in many, if not most, instances by simply adopting the submissions of the respondent. However, there were, in my view, more references made in his Honour’s reasons to the specific complaints by the appellants than the submissions to us by Senior Counsel for the appellants might suggest. Nevertheless, I do not think, with respect, that his Honour’s consideration of those matters can be seen to have been adequate, given that it was done largely by reference to, and then either adoption or rejection of, the written submissions on behalf of the respondent.
However, as I have earlier said, this adverse conclusion regarding his Honour’s reasons does not necessarily mean that the appeal would have to be allowed. This is because this Court can consider the material relied on by the appellants and determine for itself whether or not his Honour should be disqualified from further hearing the proceedings for the restraining order in relation to the wife’s solicitors. The issue of disqualification of a trial Judge is a matter which appellate courts commonly have to determine.
Accordingly, I will now identify each of the matters relied on by the appellants as they can be found in the appellants’ written submissions to his Honour (and as also raised in the grounds of appeal) and endeavour to identify whether or not his Honour dealt with the particular complaint, and if so, how he did so. I will then endeavour to apply to the various complaints the test for disqualification of a judge on the grounds of apprehended bias as propounded in the High Court decisions of Johnson v Johnson (2000) 201 CLR 488 and Ebner.
The test for disqualification on ground of apprehended bias
It may be useful if before considering the appellants’ specific complaints, I explain briefly the test propounded in those High Court decisions, so that those complaints can be considered against the background of that test.
In Johnson which, it is important to note, was a case in which a judge’s disqualification was sought on a similar basis to that on which it was sought in this case, being apprehended bias on the basis of prejudgment of the issue before him, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ explained the test which is to be applied in Australia in the following way:
11. … It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) 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 [eg, Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41].
This test was re-affirmed by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner (at [63]) (where the apprehended bias claim was based on the judge having a pecuniary interest in the outcome of the case).
Particularly important for purposes of the present case are the following further observations made by their Honours in Johnson (footnotes omitted):
13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they starting thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (footnotes omitted)
Given the language used in the wife’s affidavit in support of the disqualification application in this case, it must be emphasised (as was emphasised by members of the High Court in Johnson at [12]) that the test is objective in the sense that it is concerned not with a party’s (in this case the wife’s) own apprehensions, but those of “a fair-minded lay observer”.
The complaints raised in support of the apprehended bias claim at first instance and as pursued on appeal
Turning then to the specific complaints in this case, it is unnecessary to discuss the first of the complaints relied on by the appellants in their written submissions to his Honour for the reason that Senior Counsel for the appellants informed us that that complaint was not pressed on appeal. I mention, however, out of fairness to his Honour, that he did (in paragraph 13 of his reasons) identify and deal with that first matter (which related to the production of a summary of argument on behalf of the husband on the first day of the hearing of the restraining order proceedings).
The second, third and fourth complaints identified in the appellants’ submissions to his Honour can be conveniently dealt with together. As contained in those submissions, they are as follows (emphasis added):
23.Secondly, His Honour in the context of dealing with objections to the wife’s affidavit switched from consideration of an objection to evidence to questioning senior counsel for the wife about why, in effect, the husband was not entitled to succeed. The dialogue at P-10 [of the transcript of 8 March 2010 and following] indicates His Honour had formed a clear view that the only way the respondents could successfully deal with the husband’s application was by the wife’s solicitors swearing affidavits.
24.This position was restated numerous times, eg, P-13.25, p-27.30, P-28.10 [of the transcript of 8 March 2010]. There was no consideration of any other ways of viewing the conduct of the solicitor respondents nor a preparedness to look at any possibility other than a negative characterisation of the letter of 11 [M]ay 2009.
…
26. Thirdly, His Honour suggested to senior counsel for the husband that the husband’s application could succeed simply on the basis of the fact that the wife’s lawyers had attempted to engage solicitors acting for [Mrs G]. This was before any testing of evidence or submissions.
…
28.Fourthly, still in the context of dealing with objections His Honour characterised the conduct of the second and fourth respondents as “hiding behind their client”. This characterisation itself indicates a level of prejudgment. His Honour further expressed clear views about the weight and credibility of the wife’s evidence before any proper hearing or testing of the evidence had taken place.
It should be noted at this point that these three complaints are also raised as what might be termed “particulars” in the appellants’ fifth ground of appeal. That ground asserts that his Honour erred in failing to conclude that by reason of the matters which are the subject of these three complaints as well as certain other matters (considered individually or cumulatively) “a fair minded lay observer might reasonably apprehend” that his Honour “might not bring an impartial and unprejudiced mind to the resolution of the question which he had decided”.
The “particulars” of the matters, or complaints, now contained in ground 5 are then as follows (emphasis added):
5.1 His Honour formed a final view, at an inappropriate point in the hearing of the proceedings, before all the evidence had been heard, or tested, and before hearing full argument and submissions, that the only way the respondents could successfully deal with the husband’s application was by the wife’s solicitors swearing affidavits.
5.2His Honour suggested to senior counsel for the husband that the husband’s application could succeed simply on the basis of the fact that the wife’s lawyers had attempted to engage particular solicitors acting for a party in a matrimonial dispute in Los Angeles, California, United States of America.
…
5.4Before any proper hearing or testing of evidence His Honour characterised the conduct of the second to fourth respondents as “hiding behind their client”.
It will be seen that the appellants’ second, third and fourth complaints to his Honour (and which are now embodied in the grounds of appeal just referred to) essentially assert that at the hearing of the husband’s application to restrain the wife’s solicitors from further acting, his Honour suggested that the husband’s application could succeed simply on the basis of the letter written by the wife’s solicitors on 11 May 2009 to the American Lawyers for Mrs G and the attempt in the letter to “engage” the lawyers for Mrs G; that the respondents, being the wife and her solicitors, could only succeed in resisting the restraining orders if the solicitors were on affidavit; and that by not being on affidavit the solicitors were “hiding behind their client”. It was also asserted on behalf of the appellants that his Honour had effectively reversed the onus in the determination of the restraining order by, in effect, requiring the wife and her solicitors to establish why the order should not be made.
The passages of the transcript of the hearing of the application for the restraining order on 8 March 2010, which apparently were, and now are, relied on in support of the three complaints now under consideration are at pages 10-13, pages 22-24, and then pages 27-29 and are as follows:
HIS HONOUR: Dr Harper, can I ask you this. You told me at the commencement of the proceedings that you act for the second, third and fourth respondents.
DR HARPER: Yes, your Honour.
HIS HONOUR: Is there any reason why none of those entities – or I assume, in more practical respects, the respondent, [Mr V] and the respondent, [Ms J], have not gone in to evidence?
DR HARPER: Well the simple reason is, your Honour, they don’t need to, and this goes the heart of the way the applicant husband puts this application. And it might be worthwhile now just focusing on the terms of the letter, which really has sparked this whole debate. It can be found in the wife’s affidavit at page ‑ ‑ ‑
…
DR HARPER: The first paragraph describes in broad detail who [X Firm] act for – reference to [Mr G]. In the second paragraph it says:
In our investigations on behalf of [the wife], we have uncovered …
What the husband purports to say is that by saying, “In our investigations we have uncovered,” that must be read in some way as saying, “In the proceedings in the Family Court of Australia we have been given information by the husband.”
HIS HONOUR: Why isn’t he entitled to read that into it?
DR HARPER: Because it says:
In our investigations, we have uncovered a very complex international group.
HIS HONOUR: You say that investigation excludes having regard to any material produced by the husband. It doesn’t seem to follow, does it?
DR HARPER: No, I don’t say it excludes any material.
HIS HONOUR: So if it doesn’t exclude it, it, at least by inference, includes it, doesn’t it?
…
HIS HONOUR: But the fact is, Dr Harper, that the husband has been on about his concern that your client would disclose information about his financial affairs and, in particular, disclose information to those representing [Mr G] and therefore disclose that there has been some sort of breach of confidentiality which he says has been an intricate part of his relationship with [Mr G] over many, many years. There were a number of requests for your client’s instructing solicitors to sign confidentiality agreements and, indeed, for your client to sign a confidentiality agreement. They were refused. Doesn’t that create an environment of suspicion, to say the least, when the husband gets a copy of this letter from your instructing solicitors which contains the following:
Some of the information that we have obtained in relation to the entities may also be of assistance to your client in relation to her proceedings. We are happy to assist your client in any way possible as well.
…
So all I am saying is, all that, I would have thought, to a reasonably objective person, would suggest that there was every possibility that information was going to be relayed – or may be relayed from your instructing solicitors to those acting on behalf of [Mrs G]. Put that into a highly suspicious environment, which exists here, no doubt, then I would have thought that the husband has every reason to suspect that what might be up for grabs is that information he provides, which was the original source of information for the wife, is going to end up with [Mr G’s] wife.
…
HIS HONOUR: Well, I gather from reading the affidavit of your client, that it is asserted by her on behalf of her solicitors that nothing has been divulged by them. Is that right?
DR HARPER: That’s right, your Honour.
HIS HONOUR: Well, why aren’t they here to tell me that?
DR HARPER: Well, your Honour ‑ ‑ ‑
HIS HONOUR: They could put an end to the whole thing and say, “Look, not only did we never intend that, but, (b), it has never been done. We haven’t disclosed anything, nor would we.”
[Transcript, 8 March 2010, pp 10-13]
…
HIS HONOUR: But you say your case is, or no doubt involves, that your client has no way of knowing whether any of the information has been disseminated or not.
MR RICHARDSON: Has no way of knowing.
…
[Mr Richardson]: … Why write to engage as an agent to undertake searches a firm of lawyers in the United States who you know are acting for a client for whom they would have a conflicting interest to maintaining the confidentiality?
That is, if this letter didn’t have the bit in it about, “We want to – we’re happy to assist you in any way possible,” which Mr Harper says “should be read to me in any way conformably with our obligations at law in Australia that you may not be aware of”. The starting point is to engage people that they know they’re providing information for, that the confidentiality concerns it being expressed about to a firm of lawyers who are acting in conflict to the business partner whose affairs are necessarily being disclosed to them. And that of itself was a dangerous course, but for this letter – for your Honour to exercise the discretion ‑ ‑ ‑
HIS HONOUR: Is that not enough for your application to succeed?
MR RICHARDSON: Is it not enough?
HIS HONOUR: Yes.
MR RICHARDSON: I’m not – in this case and no other would your Honour have me concede that a piece of untested evidence coming in – I mean, this’ll be – if your Honour permits this evidence in the form of the letters …
…
HIS HONOUR: The fact that there’s no issue that [X Firm’s] … I’m sorry, but [X Firm’s] ‑ ‑ ‑
MR RICHARDSON: I thought the harbouring one was bad, but this is getting worse, with respect.
HIS HONOUR: ‑ ‑ ‑ wrote to and engaged – attempted to engage the solicitors acting for Mrs [G], who they knew to be acting for Mrs [G]. That fact in itself might be ground for the court making the order your client seeks at 7.
MR RICHARDSON: Indeed.
HIS HONOUR: So did I – well, no doubt we’ll get ‑ ‑ ‑
MR RICHARDSON: But that doesn’t ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ to hear that at a later time.
MR RICHARDSON: ‑ ‑ ‑ overcome the present position.
HIS HONOUR: Yes.
[Transcript, 8 March 2010, pp 22-24]
…
HIS HONOUR: No criticism that this letter was sent by your client’s instructing solicitor at that time. The criticism is now that nobody representing the second, third or fourth respondent, who is clearly in a position to state on oath that, well, the import of what’s in that sentence in this letter or, alternatively and most importantly, that no information has been disseminated at all, nobody’s gone into print. So ‑ ‑ ‑
DR HARPER: Well, we’ve gone into print on the last matter but in a later letter, which we’ll come to but, your Honour, in my submission, that doesn’t make this letter inadmissible.
HIS HONOUR: Well, it does, according to Mr Richardson, if section 135 comes into play, because it’s an ask, I suppose, of the court, but pursuant to the Act, that in these proceedings the court accepts hearsay evidence. So it gets in under an exception as hearsay evidence, it’s not admissible in its own right as a business record. You haven’t argued that yet but I assume that there’s no argument about that. And so, given that it’s a departure from a general practice, I suppose, in a contested proceeding, that this evidence is to be admissible under the Evidence Act, section 75. Mr Richardson says that section 135 of the Evidence Act should operate to exclude it because of its unfair and prejudicial – it is unfair and prejudicial to a party, namely, his client, because nobody’s got to answer this. In other words, you’re - I suppose, put it in another way, your instructing solicitors are hiding behind their client, in a situation where they could put this whole thing to rest by swearing an affidavit.
DR HARPER: Well, with the greatest respect, your Honour, two things can be said about that. The first is that this letter, the one that’s objected to, is authored by the two solicitors. They’re not hiding behind the client at all if this is ‑ ‑ ‑
HIS HONOUR: They are, because they are trying to get it into evidence without putting their hand up themselves. They want this lady to have it put into evidence through her affidavit, the wife, in circumstances where they know she can’t be asked any legitimate question about it.
DR HARPER: Well, with respect, she could be asked questions about it, your Honour.
HIS HONOUR: What useful evidence could she give in any way to tell me what they did or did not do in their office? She would have no idea. She relies solely on what she is told.
DR HARPER: Well, your Honour, that may be the case but until the question is asked by my learned friend in cross-examination it is, with respect, difficult to second guess exactly what the answer is going to be.
HIS HONOUR: I wouldn’t anticipate for one moment, Dr Harper. You’d be sitting there, standing up and not knowing the answer to that question.
DR HARPER: Well, I don’t want to get into a debate with your Honour about it ‑ ‑ ‑
HIS HONOUR: Yes.
DR HARPER: ‑ ‑ ‑ but just – we are talking about a hypothetical line of questioning in cross-examination, that’s all.
HIS HONOUR: Right.
…
DR HARPER: Now, in our respectful submission, the first paragraph of this letter, the purpose of that, is to alert the recipient to those elements of the background context which may involve problems of conflict, etcetera. That’s the purpose for stating those matters at the very start, so that the person, the recipient, will then know that it may be a situation where she doesn’t want to get involved. That’s the purpose of the first paragraph, rather than ‑ ‑ ‑
HIS HONOUR: Well, you say that.
DR HARPER: Well, but – that’s a fair and reasonable reading of it, with respect, your Honour.
HIS HONOUR: It’s an interpretation, it’s a slant. Why is it not equally open to say its purpose is to say to these solicitors “We’re in the same cause. We’re both in actions representing wives against [Mr G] and his partner, we should be teaming up.” not “Now, hang on sec, before we get anywhere you’re going with this, you should know that there’s possible conflict.” It certainly is an interpretation you put on it but you couldn’t say it’s the only one.
DR HARPER: Well, we would say, if your Honour goes on to read the letter, it then adverts to the areas of possible overlap, finishing with the paragraph beginning:
We require the assistance of a lawyer in Los Angeles.
HIS HONOUR: Yes.
DR HARPER: So that the lawyer in Los Angeles, ie, Ms [W], will then know that if she’s been called upon to give assistance, it’s in the context of what’s said in the previous two paragraphs. And it may be she decides, as apparently she did, that she shouldn’t get involved.
HIS HONOUR: Well, your clients – your instructing solicitors didn’t have that idea, did they? Because they say:
We would like to retain the services of your officers.
If they had thought for one moment there was any possible conflict, they would have never written the letter.;
DR HARPER: Well, your Honour, with respect, that’s not necessarily the case because they’re inviting cooperation, but it’s in the context of what goes before.
HIS HONOUR: Isn’t this all the more reason why your instructing solicitor shouldn’t be putting something before the court? We’re having to take – be speculative about all this. Now, you’re putting a construction on it, which clearly, you should. But what I’m saying to you is that it doesn’t seem to me that to be the only construction, or the construction that is likely to be 90 per cent right. And there’s a very simple way out of this. Anyway.
DR HARPER: All right, your Honour. Can I just say two other things?
HIS HONOUR: Yes, certainly.
[Transcript, 8 March 2010, pp 27-30]
Also relied on by the appellants in support of this group of complaints is the following passage from the transcript of the hearing on 10 March 2010 (page 4):
HIS HONOUR: But what concerns me is that, in the absence of any evidence from the second and balance of the respondents, doesn’t it leave the situation that all that can be put on their behalf are submissions as to why the application sought by the husband should not be granted? And if all you can rely on is submissions and not back it with any evidence, I wonder what the prospects of success in opposing the orders being sought might be? I thought that you and the balance of your clients, apart from the wife, might want to contemplate that and, if you thought appropriate and if they thought appropriate, do something about putting some evidence on about it? Is that something that’s likely to be considered as well during the course of any adjournment?
DR HARPER: All aspects would be considered, your Honour.
HIS HONOUR: Right. The only reason I ask that is, apart from being curious, I suppose, is the time that will be necessary for the case will be ready to come back, if there’s to be further evidence filed by your clients.
[Transcript, 10 March 2010, p 4]
The fifth and sixth complaints identified in the appellants’ submissions to his Honour are as follows (emphasis added):
29.Fifthly, his Honour appeared to assist the husband’s application by suggesting to senior counsel for the husband that an application may be made for the production of documents based on waiver of privilege. In so doing his Honour made reference to numerous previous judgments about waiver of privilege by using the expression “precedent judgment no 27” in dialogue with the husband’s senior counsel.
30.Sixthly, this suggestion reinforced an appearance of familiarity with senior counsel for the husband.
Again these two complaints are also contained in the “particulars” specified in the appellants’ fifth ground of appeal (which, it will be recalled, asserts error on the part of Le Poer Trench J in not concluding that a fair minded lay observer might reasonably apprehend that he might not bring an impartial and unprejudiced mind upon the matters to be decided), where they appear in the following terms (emphasis added):
5.5His Honour suggested to senior counsel for the husband that an application may be made for the production of documents based on waiver of privilege. In doing so His Honour made reference to numerous previous judgments about waiver of privilege by using the expression “precedent judgment no 27” in dialogue with the husband’s senior counsel.
5.6His Honour gave an appearance of familiarity with senior counsel for the husband.
The passages of the transcript of 8 and 10 March 2010 relied on in support of the complaint that his Honour suggested a wavier of privilege application are as follows:
HIS HONOUR: Mr Richardson, this having been disclosed, as it is in paragraph 29, does it not entitle your client to require the production of documents relevant to the assertion?
…
HIS HONOUR: Well, I must say, as I read this affidavit, I was surprised I hadn’t been asked to make a ruling on waiver, but ‑ ‑ ‑
[MR RICHARDSON wrongly attributed to Dr Harper]: I thought your Honour was getting sick of them, so ‑ ‑ ‑
HIS HONOUR: Well, I am, but anyway. Right.
[Transcript, 10 March 2010, p 11]
…
MR RICHARDSON: And if there is a waiver issue to argue, is it likely that your Honour would be able to accommodate that on that occasion?
HIS HONOUR: Well, that will only take what, a day or so, I suppose, Mr Richardson, would it?
MR RICHARDSON: Maybe less.
HIS HONOUR: Just trot out precedent judgment number 27 – I could, having decided matters of waiver of legal professional privilege which, Dr Harper, you may not know, is something that is regularly run in this court.
[Transcript, 10 March 2010, p 22]
The passages of transcript of 8 and 10 March 2010 apparently relied on in relation to his Honour’s relationship with Senior Counsel for the husband, Mr Richardson, are as follows (although it is difficult to see the relevance of the last two passages):
HIS HONOUR: Right, thank you very much. Is there a further case outline document, Mr Richardson?
MR RICHARDSON: As in a summary of argument?
HIS HONOUR: Yes.
MR RICHARDSON: Yes. Would you like it now?
HIS HONOUR: Can I have a look at it? I thought for one moment you must have been on holidays or something.
MR RICHARDSON: I wish I was.
[Transcript, 8 March 2010, p 3]
…
DR HARPER: Decision of Norman & Horth.
HIS HONOUR: I’m familiar with that, I think.
DR HARPER: Yes, your Honour. I’m sure your Honour is
HIS HONOUR: Thank you. Mr Richardson should be too.
DR HARPER: Yes.
[Transcript, 8 March 2010, p 4]
…
DR HARPER: Well, then, your Honour would treat the letter with the appropriate degree of weight.
HIS HONOUR: Which would be what? None?
DR HARPER: Well, not necessarily …
[Transcript, 8 March 2010, p 38]
…
HIS HONOUR: The arguments about relevance, though – and if it is peripherally relevant because it involves an enormous amount of guesswork, then it should be excluded, shouldn’t it?
DR HARPER: Well, I didn’t – but, your Honour, we don’t say it involves an enormous amount of guesswork.
HIS HONOUR: All right. Well, how much are going to charge?
DR HARPER: Well - - -
HIS HONOUR: You wouldn’t know, would you? You wouldn’t know how much time might be involved in meeting with new lawyers and answering any questions that they might have about what has happened at this stage. It might be nothing. It might be a vast some of money, mightn’t it?
DR HARPER: Well, it might. But, your Honour, we know that has to happen if new lawyers are going to be briefed.
HIS HONOUR: Well, what has to happen?
[Transcript, 10 March 2010, pp 14-15]
I turn now to consider how his Honour dealt in his reasons for judgment with the five complaints which the appellants continue to pursue on appeal.
Determination of the complaints at first instance
In the first paragraph of his reasons for judgment and having identified the disqualification application which was before him, his Honour explained his attitude to the fact that the application was supported only by an affidavit from the wife, a lay person, saying:
1. … The application is supported by an affidavit of one of the applicants, namely the wife. In my experience it is unusual for an application for disqualification based on an allegation of apprehended bias, for a lay party to the proceedings, to file an affidavit supporting the application for disqualification. Mr Richardson SC, Counsel for the husband, did not object to the affidavit on the proviso that I treat the wife’s statements as supporting a conclusion that she is bona fide in making her application. That course of action was acceptable to the wife’s Counsel and thus the affidavit was admitted into evidence, with the exception of paragraph 55, which was not read.
Then having referred to the fact that he had written submissions from both sides before him, and that the submissions of the applicants (appellants) relied on portions of transcript of the hearing for the restraining order on 8 and 10 March 2010, his Honour explained the case of the applicants (appellants) in the following general terms:
4. The wife’s case is that she has lost confidence in the impartiality of myself and does not believe the husband’s application is being approached with an unprejudiced mind. It is collectively submitted by the applicants that the matters set out in the wife’s evidence (that is the reference to parts of the transcript from 8 and 10 March 2010) “…either singly (sic) or cumulatively demonstrate actual prejudgment or a reasonable apprehension of prejudgment.”
5. Having stated the above, which is a quotation from the applicant’s outline of case, it was made clear in that same document under the heading “Introduction” and also in the submissions made by Senior Counsel for the applicants that what is claimed by each of the applicants is that “the respondents or a fair-minded lay observer might, reasonably apprehend that His Honour might not bring an impartial and un-prejudiced mind to the resolution of the question he is required to decide.” (original emphasis)
Having referred to certain authorities, his Honour then noted “some matters arising from the transcripts of 8 and 10 March 2010”. The first matter was the matter (concerning the summary of argument in relation to the application for the restraining order) which I earlier explained was not pursued before us. The second matter related to his Honour’s own closing comments at the hearing on 10 March 2010, but as he also noted in his reasons was “not referred to by the applicants in the disqualification application”. It is, however, now the subject of ground 3 of the appellants’ grounds of appeal, and I will return to it in due course.
His Honour next referred further to various authorities, before returning to the actual matters relied upon in the disqualification application, saying:
23.It is the applicants’ case that the specific references to the transcripts of 8 March and 10 March 2010, as contained in the written submissions, oral submissions and the affidavit of the wife, either singularly or cumulatively demonstrate actual prejudgment or a reasonable apprehension of prejudgment. Thereafter, the written submissions address six particular areas of complaint flowing from an analysis of the transcript.
Unfortunately, his Honour did not then go on himself directly to address the “six particular areas of complaint flowing from an analysis of the transcript”. Rather he chose to deal with those complaints by adopting portions of the respondent’s written submissions (which were annexed in full to his reasons) and then by either accepting or rejecting parts of those submissions. This approach by his Honour is also the subject of certain of the appellants’ grounds of appeal as will be later explained. Notwithstanding the length of the relevant paragraph of his Honour’s reasons, I now set it out - although I omit subparagraph (b) as it relates to the appellants’ first complaint (concerning the summary of argument for the restraining order hearing) which is not now pressed:
24. In the submissions by the respondent the husband deals with each of the criticisms, either singularly or collectively. I do not propose to deal individually with the respondent’s submissions, however, I accept and adopt the following portions of those submissions (the submissions of the respondent husband are set out in Appendix I hereto ):
a)That which appears on page 2 and 3 of the submissions under the heading “ At the Outset”
…
c)The submission under the heading “The construction of the letter (paragraph 22-27)” appearing on pages 4 to 7 of the respondent husband’s submissions, I accept subject to the following.
In relation to the first sentence of the last paragraph on page 5 of the submission, I would not use the words “elusive and inappropriate.” I do however, reject paragraph 25 of the submission of the applicants, as having any reasonable basis.
I turn to the allegation that I had engaged with Dr Harper in an “antagonistic and provocative manner”. Although I accept the wife on a subjective basis may have formed that view, such view informed by any anxiety she may have about the outcome of the property proceedings as a whole, I do not accept that is a view the “fair minded lay observer” would have formed. The context needs to be considered. The wife was represented by a highly skilled Senior Counsel and Junior Counsel. Both those Counsel have long standing experience in practicing in superior Courts. They have clearly been engaged on behalf of the wife as skilful advocates having substantial standing and reputation in the legal profession. There was no indication that either of the wife’s Counsel considered any of the interaction between myself and Dr Harper as crossing the bounds of reasonableness.
d) In relation to the submission under the heading “Lawyers not filing affidavits (paras 28-36)”, I accept those submissions with the exception of the following words: “Surely the hypothetical fair-minded observer has the benefit of advice from their lawyers to explain some of these matters and their significance...”. Thus far I do not consider there is any decided case, being binding on this Court or treated as persuasive authority by the Court, which suggests the test applicable to determining whether a case of apprehended bias has been made out includes an assumption that the fair-minded observer could obtain legal advice before reaching a concluded view.
d)That which appears under the heading “Question to Richardson-“is that enough for your application to succeed” (paras 37 and 38)”. I accept those submissions in their entirety.
e)That which appears under the heading “Allegation that lawyers are “hiding behind me” and I am unable to give evidence about certain matters (paragraph 39 to 46)”. I accept those submissions in their entirety.
f) That which appears under the heading “Unsolicited suggestion as to waiver of privilege (paras 48 to 57)”. I accept those submissions in their entirety.
g) That which appears under the heading “Comments about my affidavit-(Paragraphs 58 and 59)”. I do not adopt the second paragraph under this heading. However, I say the transcript of the argument and rulings speaks for itself. I otherwise accept the balance of the submission under the heading.
h) That which appears under the heading “Relationship with Mr Richardson-(paragraphs 60 to 67)”. In relation to the submission on paragraph 58.2 I would agree that the decision in H and N [2003] FamCA 613; [2003] FamCA 1284 was “novel in the jurisprudence of this court” if by those words it was intended to convey that the case canvassed aspects of law not previously dealt with in a reported case from the Full Court of the Family Court of Australia.
i) That which appears under the heading “Conclusion”.
I accept that submission in its entirety.
Discussion of challenges to determination at first instance
It may be that by his cross-referencing to the respondent’s written submissions in subparagraphs (c) to (h) of paragraph 24 of his reasons, his Honour could be said to have identified each particular complaint raised before him by the appellants and to have disposed of that complaint. But it is virtually impossible to be satisfied that this is so given the manner in which his Honour addressed those complaints, being only through reference to the respondent’s written submissions, and then a statement of acceptance or rejection of all or part of a particular submission.
One aspect of the complaint contained in the appellants’ first ground of appeal, (being, it will be recalled, that his Honour failed to give proper and adequate consideration to the basis of the disqualification application) is that his Honour annexed to his judgment only the respondent’s submissions, and not those of the appellants, and then merely adopted and accepted the respondent’s submissions. Similarly, the final “particular” contained in the appellants’ fifth ground of appeal (which, it will be recalled, asserts error on his Honour’s part in not concluding that there might be a reasonable apprehension that he would not bring an impartial or unprejudiced mind to his determination) is that the respondent husband’s submissions were annexed to his Honour’s reasons for judgment.
It was undesirable, in my view, in the context of an application for disqualification of a judge based on claims of lack of impartiality, for the judge to be seen to address the complaints of the applicant for disqualification only through the submissions of the respondent. While I am not necessarily persuaded that this approach might (as is asserted by the appellants’ fifth ground of appeal) cause a fair minded lay observer to apprehend that the judge might not bring an impartial and unprejudiced mind to the matter to be determined, I do consider that this approach caused his Honour’s reasons for judgment to be inadequate.
As I explained earlier in these reasons, the High Court’s decision in Ebner requires a clear identification of the matters which found a claim for disqualification of a judge based on apprehended bias. In addition, decisions of this Full Court such as Bennett & Bennett (1991) FLC 92-191 (and the decisions of other appellate courts there relied on) establish that a judge’s reasoning will be inadequate if the losing party cannot understand why his or her case was rejected and the appeal court is denied the opportunity to detect error.
The complex approach used by his Honour in the present case of annexing the respondent’s submissions and then accepting and adopting, but in some cases rejecting, portions of those submissions, and without reference being made to the applicants’ submissions, results, in my opinion, in his reasons failing to satisfy the adequacy of reasons test as propounded in the authorities mentioned.
I acknowledge that it might be possible to reconstruct or redraft his Honour’s reasons to identify in them each of the appellants’ complaints as described in the respondent’s submissions and then to insert the passages of those submissions directed to a particular complaint which were adopted or accepted by his Honour. But, in my view, neither the appeal court, and certainly not the unsuccessful applicants for his Honour’s disqualification should be expected to undertake that task in order to arrive at an understanding of his Honour’s reasons (including how relevant legal principles had been applied to the complaints made).
There is, therefore, substance, in my view, in the first and second grounds of appeal, and it would therefore become necessary (were it not of course for the conclusions reached by May and Thackray JJ) for the disqualification application to be re-determined by this Court. I will now indicate how I would re-determine the application.
Re-determination of disqualification application
For purposes of this re-determination I do not consider it necessary to repeat the complaints which the appellants assert establish individually or cumulatively an apprehension of bias as these complaints (and the material relied on to support them) have already been identified in detail in paragraphs 26 to 31, and paragraphs 32 to 35 of these reasons.
In the re-determination of this matter it must be remembered that in this case the husband’s application for the restraining order against the wife’s solicitors appears to have had its foundations in the somewhat unusual and controversial letter, which those solicitors had written to the American lawyers for Mrs G. The case then became more complicated by the manner in which the application by the appellants for his Honour’s disqualification was pursued, relying, as it apparently did, on the wife’s affidavit alone. These two somewhat unusual and controversial matters were at the heart of his Honour’s questions and/or observations which are the subject of the appellants’ second, third and fourth complaints.
When regard is had to the observations concerning modern judicial practice made by members of the High Court in Johnson (in the paragraph ([13]) which I earlier cited), I consider that his Honour’s questions and observations, when read in context, concerning the strength that the letter of 11 May 2009 appeared to give to the case for the restraining order against the wife’s solicitors, and the apparent reliance, at least at that stage, by the wife’s side only on her affidavit, did not exceed the bounds of legitimate questions and observations by a judge (as referred to in paragraph 13 of Johnson). In these circumstances, the fictional lay observer, whose position is to be understood in light of what is said in paragraph 13 of the High Court decision in Johnson, could not reasonably apprehend that his Honour might not bring an impartial mind to the resolution of the case for the restraining order in relation to the wife’s solicitors. (See also the observations in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 of Gummow ACJ at [4] and Callinan J at [173] to [180].)
It must be emphasised in this context that should it be that his Honour’s apparent views of the relevant law or practice, as he expressed them during the hearing, were not correct, that fact would not, of course, warrant his disqualification. The appropriate remedy for any error of law in his ultimate decision in relation to the restraining order application (including, of course, issues concerning onus in relation to that application) would be an appeal against that decision.
As to the appellants’ claims of undue familiarity between his Honour and Senior Counsel for the husband, these claims appear to be based for the most part on references by his Honour and/or Senior Counsel for the husband, to applications apparently made frequently in, or authorities relied on frequently, in the family law jurisdiction. While care should be taken by judges to ensure that litigants whose legal representatives who do not appear regularly in a specialist jurisdiction (or indeed, those legal representatives) do not feel disadvantaged through the use of short-hand expressions for practices or authorities in that jurisdiction, I do not consider that the transcript passages relied on in support of the appellants’ complaints in this regard, would cause the lay observer to apprehend that his Honour would not fairly determine the application for the restraining order.
I conclude therefore that the complaints raised before his Honour and now pursued on appeal, would not establish an apprehension of bias requiring his Honour’s disqualification.
Other matters raised on appeal
Before reaching a final conclusion in relation to this appeal, it is necessary for me to consider the matters raised in the appellants’ third and fourth grounds of appeal.
The third ground asserts that his Honour erred in concluding that remarks made by him (at the end of the hearing on 10 March 2010) “would indicate to a fair minded observer an absence of prejudgement or bias”.
His Honour dealt with this matter in the following way in his reasons for judgment of 24 May 2010:
14. The other matter arising from the transcript of 10 March 2010 which is important and which was not referred to by the applicants in the disqualification application, is that which appears on page 23. I made the following statements at the conclusion of the hearing on 10 March 2010:
His Honour: Now, before you leave, ladies and gentlemen, although this matter is not yet determined and clearly we have a long way to go, it seems to me that it is possible to resolve it. The consequences of not resolving it are going to be far-reaching for everybody and the way things are shaping up, it’s going to be some time before I can finally determine this application, if that’s what has to happen, which means that the single expert stops work unless we can come to some accommodation about provision of documents to the single expert that allows that to continue while this matter is proceeding.
So can I suggest that some real effort is made to try and think through a way that this matter can be resolved to the satisfaction of each of the parties, that is, so that [Mr Dunwell] might rest peacefully knowing that his commercial life may continue, and on the other hand, [Mrs Dunwell] may rest easy knowing that she can continue to engage her solicitors. Now, I think there’s a pathway through there, and some creative thinking to see if it can’t be resolved. I will leave you with those thoughts. If it can not be resolved, I’m happy to continue with these determinations. They’re challenging, interesting, and I’m sure they won’t stop here.
15. In my view, the statement appearing in the transcript from myself as set out above falls directly into the consideration referred to by Justice Dawson in Re JRL; Ex parte CJL (supra). In my view those words at the conclusion of the hearing on 10 March 2010 would appear to a fair-minded lay observer to really indicate that firstly, I understood the parties’ concerns arising out of the application filed by the husband on 24 February 2010. Secondly, that I clearly had not made up my mind in relation to that application and thirdly that I was encouraging each of the parties and their legal representatives to find a resolution which would allow the case to progress to a determination of the principal issues between them, namely the division of matrimonial property. (original emphasis)
As his Honour pointed out in the first sentence of paragraph 14, his concluding remarks at the hearing of 10 March 2010 had not been a matter raised before him in support of the application that he disqualify himself (although that would not, in my view, necessarily preclude the appellants from raising those remarks in the context of an appeal in which they continue to seek his Honour’s disqualification). It seems that the reasons why his Honour referred to these concluding remarks in his judgment in relation to the disqualification application (notwithstanding that the remarks had not been relied on in support of that application) was essentially to demonstrate that he had not prejudged (in the husband’s favour) the application for the restraining order against the wife’s solicitors.
The appellants now submit in support of their appeal that his Honour’s concluding remarks on 10 March 2010 “indicate an excessive concern for the interests of the husband rather than an even handed approach to both sides”. I do not consider that the fair minded lay observer might reasonably apprehend on the basis of the remarks in question, that his Honour would not decide the case before him on anything other than an impartial basis. Rather to the contrary they indicate a concern for both parties.
The fourth ground of appeal asserts that his Honour “misdirected himself by taking into account irrelevant and extraneous matters” which are referred to in paragraph 25 and the following paragraphs in his reasons for judgment in relation to the disqualification application. Given the length of paragraph 25 and the following six concluding paragraphs of his Honour’s reasons, I will not set them out. It is sufficient to say that these paragraphs begin with the observation that the case is “illustrative of the type of litigation which attends disputes in this court which are considered ‘big money cases’”. His Honour then went on to suggest that such cases involve or create “satellite litigation” in the form of many interlocutory applications, which create additional work for the Court, and he made reference to certain High Court and State Supreme Court decisions.
It is clear that these concluding remarks by his Honour were directed to the present case, and indeed, can be read as expressing some dissatisfaction with the manner in which the case was being conducted. However, I do not think that it can necessarily be assumed that the views expressed by his Honour were then taken into account by him in reaching his decision not to disqualify himself. Thus, ground 4 has not been established.
I would, however, take the opportunity to suggest that it is preferable if judges in their judgments say only what is absolutely necessary to the determination of the particular case, thereby avoiding claims such as that made in this appeal, being that an apparently extraneous or irrelevant matter had been taken into account in the determination of the case.
Conclusion
For the reasons I have given, I would dismiss the appeal against his Honour’s refusal to disqualify himself. Having regard to the submissions made in relation to costs at the conclusion of the hearing of the appeal, I would order that the appellants pay the respondent’s costs of, and incidental to, the appeal.
The applications and proposed appeal in relation to the orders made on 14 April 2010
Towards the end of the second day (10 March 2010) of the hearing of the husband’s application for the restraining orders in relation to the wife’s solicitors and when it was clear that the matter would be part-heard until at least 12 April 2010, Le Poer Trench J made a direction that on or before 31 March 2010 each of the respondents to the application for the restraining order were to file and serve any affidavit on which they wished to rely for the purposes of the determination of that application. No such affidavit was filed by 31 March 2010.
When the matter came back before his Honour on 12 April 2010, Senior Counsel for the wife and the wife’s solicitors sought an extension of time of a further fourteen days to file an affidavit. Such an extension of time was opposed on behalf of the husband on the basis that no explanation had been provided as to why the direction to file any further affidavit by 31 March 2010 had not been complied with.
In the course of the submissions which then ensued in support of, and opposition to, the application to extend the time to file a further affidavit, Senior Counsel for the wife and her solicitors informed his Honour that the proposed affidavit would be from an “experienced practitioner” (but who was not named) in the family law area who would provide an explanation as to why the practice of solicitors in that area is not to “put on” affidavits because of “a serious risk of issues of waiver of privilege arising”.
Having then heard further relatively extensive submissions from both sides, his Honour reserved his decision on the application until 14 April 2010, on which day he was also to hear the application (filed by the wife and her solicitors on 6 April 2010) that he should disqualify himself from further hearing the application for the restraining order against the wife’s solicitors.
When the matter came before his Honour on 14 April 2010, Senior Counsel for the wife and her solicitors submitted that it would be “more appropriate” for his Honour to defer delivering judgment in relation to the application to extend time for the filing of any affidavit until after he had determined the application for his disqualification. However, Senior Counsel for the husband sought that his Honour should proceed to deliver judgment in advance of the determination of the disqualification application.
In the event, his Honour determined that he would not defer delivery of judgment in relation to the application to extend time for the filing of an affidavit and he proceeded to deliver judgment refusing that application. It is from his Honour’s decisions (embodied in Orders 1 and 2 of the orders made on 14 April 2010) not to defer delivery of that judgment and not to extend time for the filing of an affidavit that the wife and her solicitors now seek leave to appeal by way of a Notice of Appeal filed on 7 July 2010. (There was a third order made by his Honour on 14 April 2010 which provided only that the decision in relation to the disqualification application was reserved. Although the Notice of Appeal states that all orders made on 14 April 2010 are appealed, it can be assumed that the proposed appeal would only be against the first two orders that day.)
An extension of time is also needed in respect of the application for leave to appeal the orders of 14 April 2010. But such an extension of time did not appear to be contested, and should, in my view, be granted because his Honour’s settled ex tempore reasons delivered on 14 April 2010 did not become available to the parties apparently until 22 June 2010.
In his reasons for judgment his Honour first explained why he was not prepared to defer delivery of the judgment in relation to the extension of time to file the affidavit pending determination of the disqualification application:
4. For my part, I am in a position to deliver judgment now. In my view, the application for deferral should be refused. The matter has been argued, I have reserved to prepare the judgment and I am now ready to do so. If it transpires that I am not disqualified from further hearing the matter then it is one less event which will be required in the progression of the case to final determination.
Then having explained the background to the application and summarised the submissions made to him, his Honour expressed the view that the proposed evidence would not be capable of achieving the conclusion sought by the wife (that is, that it is not the practice in the family law jurisdiction for solicitors to file affidavits because of the risk of a waiver of legal professional privilege), and he proceeded to give his reasons for taking that view.
However, his Honour can be read as in effect putting his discussion about the subject of the proposed affidavit to one side, and then proceeding to determine the application on the following purely procedural considerations:
25. Even if I accept the evidence of an acceptable expert, to the effect proposed by the respondents in this application, it would have no application to the facts of this case as they currently exist. The making of Order 3 on 10 March 2010 would take this case out of the category where the Court might find it understandable that the respondent solicitors have chosen not to go into evidence because of the stated perception. The making of the Orders on 10 March 2010 must be seen to have given the respondent solicitors sufficient time to properly inform themselves on matters of law, whether by personal research or through obtaining of advice from counsel. In this case the solicitors are parties to the proceedings and they are represented by both senior and junior counsel.
26. I have not been told the identity of any lawyer who is willing to provide expert evidence in the nature of that asserted by the respondents. Not only would such a person have to be prepared to provide the evidence, he or she must also be accepted by the Court as having the requisite expertise to do so. If it is a matter of law which the respondents say inform reluctance to file an affidavit then that law can be put before the Court by the respondents in submission in this hearing.
27. I propose, based upon the above, to refuse the respondent’s application to adduce evidence from an expert in the nature outlined by them.
It is essential to remember that this is an application for leave to appeal what are truly procedural orders, and it is governed by decisions such as Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170.
While I may have some doubts as to the desirability of his Honour’s proceeding to deliver the judgment about the applications to extend time to file the affidavit while the disqualification application was pending, I also acknowledge that his Honour’s reasons contained in paragraph 4 of his judgment (and set out above) have force. But in any event, nothing, in my view, turns on that decision by his Honour, and the interference of this Court with that decision would not be warranted.
Similarly, when regard is had to his Honour’s reasons in paragraphs 25 and 26 of his judgment, interference with his decision not to extend time for the filing of an affidavit would not be justified having regard to the principles governing the grant of leave to appeal interlocutory orders. As I indicated above, his Honour’s views about the subject matter of the proposed affidavit were not ultimately determinative of the matter, and thus do not require further discussion.
Accordingly, I would refuse the application for leave to appeal Orders 1 and 2 of the orders made on 14 April 2010, and again having regard to the submissions made at the conclusion of the hearing before us, I would order that the appellants pay the respondent’s costs of, and incidental to, the application for leave to appeal the orders made on 14 April 2010 (including the application to extend time to file the application for leave to appeal).
May J
Introduction
On 17 December 2007 the husband filed an application for final property orders, the wife was the respondent. On 19 May 2008, an amended application for final orders was filed, seeking both property and parenting orders. Parenting orders were made by consent on 17 November 2009.
The husband filed an application in a case on 7 December 2009, asking that the wife be restrained from instructing the other appellants as her solicitors, and that the solicitors be restrained from acting in the proceedings.
The husband filed an amended application in a case on 24 February 2010. The orders sought were the same as those in the application filed 7 December 2009, with the only modification being the addition of three further parties, X Firm, the firm representing the wife, and Mr V and Ms J, the wife’s solicitors, as the respondents.
On 8 and 10 March 2010, Justice Le Poer Trench commenced hearing the husband’s application in relation to the solicitors. The hearing was not concluded because the wife and her solicitors filed an application on 6 April 2010 seeking that his Honour disqualify himself from the further hearing of the proceedings.
So before the trial about the parties’ property commences, the wife asks that the judge be disqualified. The husband asks that the wife’s solicitors be restrained from acting.
We are concerned with two appeals. The first appeal, filed 3 June 2010, EA 64 of 2010, is from an order made by Le Poer Trench J on 24 May 2010. The judge dismissed the application that he disqualify himself.
On 9 June 2010 the judge granted a stay of those orders for the purpose of allowing the appeal to be heard. The trial has not proceeded further.
The second appeal, filed 7 July 2010, EA 79 of 2010 concerns orders made by Le Poer Trench J on 14 April 2010 refusing leave to file an affidavit in the proceedings concerning the solicitors. In the notice of appeal, the appellants seek leave to appeal those orders. They ask that the orders be set aside.
In this case, reference will be made to the wife and the solicitors who are the appellants and the husband who is the respondent to the appeal.
The Disqualification Appeal
Grounds of appeal
The grounds of appeal are directed at five particular areas of complaint. It is appropriate to set out the grounds of appeal in full:
1. That the trial judge erred in that he failed to give proper and adequate consideration to the basis of the application and the submissions of the Applicants in that:
1.1The matters in issue are not adequately described;
1.2The Applicant’s submissions are not adequately dealt with by the trial judge, nor are they annexed to the judgment (in contrast to the Respondent’s submissions, which are dealt with by the trial judge and are annexed to the judgment);
1.3The trial judge merely “adopts and accepts” the submissions of the Respondent.
2.That the trial judge erred in either failing to apply the relevant legal principles to the facts of this case, or if he has done so, failing to give adequate reasons for having done so.
3.That the trial judge erred in concluding that remarks made by him on 10 March 2010, and referred to in paragraphs 14 and following of the Reasons for Judgment, would indicate to a fair-minded observer an absence of prejudgment or bias.
4.That the trial judge misdirected himself by taking into account irrelevant and extraneous matters as referred to in paragraphs 25 and following of the Reasons for Judgment.
5.That the trial judge erred in failing to conclude that by reason of the following matters, either singly or cumulatively, a fair minded lay observer might reasonably apprehend that the trial judge might not bring an impartial and un-prejudiced mind to the resolution of the question the he was required to decide:
5.1His Honour formed a final view, at an inappropriate point in the hearing the proceedings, before all the evidence had been heard, or tested, and before hearing full argument and submissions, that the only way the respondents could successfully deal with the husband’s application was by the wife’s solicitors swearing affidavits.
5.2His Honour suggested to senior counsel for the husband that the husband’s application could succeed simply on the basis of the fact that the wife’s lawyers had attempted to engage particular solicitors acting for a party in a matrimonial dispute in Los Angeles, California, United States of America.
5.3His Honour gave the appearance of dogmatism, or at least a level of final determination through remarks which could not be warranted at the stage of the hearing at which they were made, going beyond tentative views showing a tendency of mind.
5.4Before any proper hearing or testing of evidence His Honour characterised the conduct of the second to fourth respondents as “hiding behind their client”.
5.5His Honour suggested to senior counsel for the husband that an application may be made for the production of documents based on waiver of privilege. In doing so His Honour made reference to numerous previous judgments about waiver of privilege by using the expression “precedent judgment no 27” in dialogue with the husband’s senior counsel.
5.6His Honour gave an appearance of familiarity with senior counsel for the husband.
5.7His Honour annexed in full the written submissions of the husband to the Reasons for Judgment dated 24 May 2010.
Should this appeal be successful the orders sought by the wife and the solicitors include costs and:
1. That the order made by Justice Le Poer Trench on 24 May 2010 be set aside and in lieu thereof, the following order made:
“That the Honourable Justice Le Poer Trench be disqualified from the further hearing of proceedings in Suit No. SYC 8682 of 2007.” (original emphasis)
The husband opposes the appeal, and asks for costs.
Background to the application for disqualification
The application of the wife was supported by a lengthy affidavit sworn by her and filed 14 April 2010. There was no affidavit from either of the solicitors. Attached to the affidavit of the wife were the transcripts from the hearing on 8 March 2010 and 10 March 2010.
The wife and the solicitors argue that the material set out in the wife’s affidavit sworn 12 April 2010 and particular portions of the transcript of the proceedings of 8 and 10 March 2010, either singly or cumulatively, demonstrate either a reasonable apprehension of prejudgment or actual prejudgment. It is said that the application should have been allowed due to the familiarity that was shown by the judge towards senior counsel for the husband.
It is essential to understand the background to the husband’s application in relation to the wife’s solicitors and to appreciate the issues related to the disqualification arguments. It is also of benefit to gain an understanding of the other appeal.
A key and undisputed fact in this matter is that the solicitors for the wife wrote on 8 May 2009 to the solicitors for another woman who lives in America. The other woman’s husband is a business partner of the husband in these proceedings. He is what might be described as a “celebrity”. The content of the letter became known to the solicitors for the husband in these proceedings when he was informed about it by the wife of his business partner in America. As it is of some importance we will reproduce the relevant parts of the document. This is the letter referred to in ground 5.2:
… We are lawyers who act for [Mrs Dunwell] in relation to her divorce from [Mr Dunwell]. We understand that you act on behalf of [Mrs G] in relation to her divorce from [Mr G]. You may be aware that [Mr Dunwell] and [Mr G] are long standing business partners. [Mr Dunwell] is the former accountant of [Mr G]. Both [Mr Dunwell] and [Mr G] have interests in various corporate entities…
In our investigations on behalf of [Mrs Dunwell] we have uncovered a very complex international group structure that we believe [Mr Dunwell] has an interest in. It is highly likely that [Mr G] also has an interest in some of these structures. The entities involve both companies and trusts, and expand across Australia, Los Angeles, the United Kingdom and the Jersey Islands.
We require the assistance of a lawyer in Los Angeles who may carry out searches in relation to some of these entities on behalf of our client. We would like to retain the services of your offices for the purposes of assisting our client in this regard.
[Mrs Dunwell’s] proceedings are already before the Family Court of Australia. Independent valuers have been appointed to value some of the entities in Australia, however our searches are not complete in relation to the overseas entities and as a matter of urgency we require some assistance.
[Ms Dunwell] is represented by [Mr V] (Principal of [X Firm]) and [Ms J] (practising solicitor). You may contact [Ms J] … or [Mr V] …
Some of the information that we have obtained in relation to the entities may also be of assistance to your client in relation to her proceedings. We are happy to assist your client in any way possible as well.
We look forward to hearing from you and trust that you will keep this confidential …
This letter is annexed to two affidavits, the husband’s filed 7 December 2009 and the affidavit of the wife filed 19 February 2010.
The solicitors for the husband wrote to the solicitors for the wife on 19 October 2009 referring to the letter and correspondence between them about confidentiality.
A further letter was sent by the husband’s solicitor on 24 February 2010. Again we will reproduce the whole of that document:
… We refer to the Affidavit of the Wife ([Mrs Dunwell]) sworn on 19 February 2010 which has recently been served on us.
We understand that this affidavit constitutes the totality of the evidence upon which your client and [Mr V], [Ms J], and [X Firm] intend to rely in opposition to the orders sought against each of them in the forthcoming proceedings the subject of our client’s Application in a case filed 7 December 2009.
Lest there be any doubt about it, our client takes the position that the failure of [Mr V] and [Ms J] to give direct affidavit evidence of their intentions, beliefs and understandings will necessarily strengthen the inference which is otherwise available in any event, including in particular that the authors of that letter of 8 May 2009 were plainly offering to disclose information to third parties in breach of the implied obligation identified in Hearne v Street (2008) 235 CLR 125 as well as their equitable obligations of confidence.
What the authors of that letter intended (that is, what was in their minds) is not a matter upon which the wife can purport to give evidence, and nor is it a matter which can be proven by bald assertion in later correspondence.
Nor can the wife give evidence, as it appears she is attempting to do in paragraph 25 of her Affidavit (albeit, we would contend, in any event without success) to the effect that her lawyers were able to undertake searches without the benefit of material obtained from our client in these proceedings.
Again, that evidence could only be given, if at all, by [Mr V] and [Ms J] directly.
In the event that no such affidavits are forthcoming, in a timely way, we propose to tender a copy of this letter in these proceedings so as to support yet further the above inferences …
It is submitted that the judge’s comments, when read in their context “demonstrate no more than a fair, balanced and appropriate comment to the parties about the desirability of reaching a consensual resolution”.
Response to Ground 4
In regard to ground 4, the husband submits that paragraph 25 of his Honour’s reasons for judgment, are, as the preceding heading of the paragraph suggests “General Comment”. It is the husband’s contention that these comments “do not bear any necessary or apparent relationship to any aspect of the determination by His Honour of the immediate application and have not been demonstrated to bear any such relationship”. In addition, it is said that the comments do not support “the proposition that His Honour ought be apprehended as unable to properly determine the proceedings between the parties”.
Response to Ground 5
The husband submits that the complaints raised in ground 5 do not “accurately reflect the material said to record the same, and, neither collectively nor individually … give rise to any logical connection”.
It is submitted, in response to ground 5.1, that the husband’s counsel, from the commencement of the proceedings, objected to parts of the wife’s affidavit on the basis that there was to be no evidence from the wife’s solicitors. The absence of that evidence resulted in the majority of the objections being successfully maintained. It is said, that at no time during the exchanges was a final view expressed by the trial judge, rather his Honour endeavoured to understand and test the wife’s argument that evidence from her solicitors was not necessary.
With regard to ground 5.2, it is the position of the husband that the relevant exchange between the trial judge and senior counsel for the husband, when read in context, evidences his attempts to test and understand the case being advanced for the husband.
Ground 5.3, it is said, requires an acceptance of criticisms of his Honour’s presentation and demeanour which cannot be ascertained by reading the transcript of the proceedings. In order for this ground of appeal to succeed it is correct that this area of complaint requires an acceptance that the trial judge had formed a concluded view about the proceedings against the solicitors.
In dealing with ground 5.4 the submissions raised in 5.1 are relied on. In addition, it is said that the statement was made in a “robust” exchange where the trial judge was attempting to understand the arguments being made.
It is submitted that the reference to “precedent judgment number 27” which was complained of in ground 5.5 is to be interpreted as a “reference to the prevalence of arguments as to waiver of privilege, a reference which was the subject of contemporaneous explanation to Counsel for the Appellants”.
It is submitted that ground 5.6, similarly to ground 5.3, requires an inference to be drawn as to the trial judge’s presentation and demeanour. It is submitted that familiarity alone with any legal practitioner should not give rise to disqualification. Ethical considerations guided by publications including the Australian Institute of Judicial Administration, Guide to Judicial Conduct (Second Edition), 2007 support this submission.
In providing a response to ground 5.7, the husband relies on the previous submissions, and also on the submission that the matter complained of was not one on which the disqualification application was based.
Reasons for Judgment of the trial judge
The trial judge in his reasons for judgment noted that it is “unusual” in his experience for an application for disqualification based on an allegation of apprehended bias, to be supported by an affidavit of a lay party to the proceedings.
There was significant emphasis in the submissions of the appellants in relation to his Honour’s remarks at the conclusion of the hearing on 10 March 2010. In part the trial judge said:
… Now, before you leave, ladies and gentlemen, although this matter is not yet determined and clearly we have a long way to go, it seems to me that it is possible to resolve it. The consequences of not resolving it are going to be far-reaching for everybody and the way things are shaping up, it’s going to be some time before I can finally determine this application, if that’s what has to happen, which means that the single expert stops work unless we can come to some accommodation about provision of documents to the single expert that allows that to continue while this matter is proceeding.
So can I suggest that some real effort is made to try and think through a way that this matter can be resolved to the satisfaction of each of the parties, that is, so that [Mr Dunwell] might rest peacefully knowing that his commercial life may continue, and on the other hand, [Mrs Dunwell] may rest easy knowing that she can continue to engage her solicitors. Now, I think there’s a pathway through there, and some creative thinking to see if it can’t be resolved. I will leave you with those thoughts. If it can not be resolved, I’m happy to continue with these determinations. They’re challenging, interesting, and I’m sure they won’t stop here. (emphasis added)
For the trial judge:
15.… those words at the conclusion of the hearing on 10 March 2010 would appear to a fair-minded lay observer to really indicate that firstly, I understood the parties’ concerns arising out of the application filed by the husband on 24 February 2010. Secondly, that I clearly had not made up my mind in relation to that application and thirdly that I was encouraging each of the parties and their legal representatives to find a resolution which would allow the case to progress to a determination of the principal issues between them, namely the division of matrimonial property.
Within the judgment reference was made to the High Court’s decision in Antoun v R (2006) 224 ALR 51. I would draw particular attention to the following paragraphs from the decision of Kirby J:
27.So far as the first point is concerned, it is certainly true that the trial judge’s remarks were strong and forthright. In some circumstances, that will be a permissible expression to adopt, especially where the trial judge is conducting a trial as the sole judge of fact and law and the parties are legally represented by counsel able to respond with clarity and forthrightness. Judicial indignation at a particular course of action, or proposed action, may on occasion be understandable. Couched appropriately, at the proper time and in due sequence, it may give rise to no reasonable apprehension of bias. For centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms, that they consider that a particular submission or course of action is hopeless, a waste of the court’s time or doomed to fail. I would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates.
…
30.The most powerful evidence that he did so appears from the record. He expressed his conclusion as to the outcome of a submission before hearing any argument from the appellants, whether on the facts or the law. Every judge of experience knows that pertinent facts can be forgotten or mistaken. As well, the law can be misunderstood or an aspect of it overlooked. Some opportunity should therefore have been given to counsel to develop their submissions, if necessary in writing, prepared overnight. The repeated insistence that any submissions would not bear fruit and the later unrequested, unargued revocation (or non-continuance) of bail reinforced the conclusion initially given. The line was crossed. The trial judge thereby disqualified himself. (emphasis added) (footnote omitted)
The trial judge said in his reasons for judgment that the extracts from Antoun v R, as set out in paragraphs 68 to 75 of that discussion, can be distinguished from the transcript references in the present case. He said:
20.… [t]he statements reported there speak for themselves and, in my view, are entirely different in nature and character to that which is put against me in the application for disqualification in this case. (emphasis added)
The trial judge, in his judgment also made general comment about what are sometimes characterised as “big money cases”. His Honour stated that these types of cases frequently require the court to deal with “satellite litigation”. It was stated by the trial judge that this utilises a considerable amount of court time and is “[a]nother fact which adds to the workload of a judge hearing such applications is the constant unstated threat of an appeal”.
His Honour then went on to state that in “big money cases”, for disputes that could normally be resolved in the usual manner between the parties, the parties should expect a more robust approach to be taken by the trial judge. In addition, it was said that “the fair minded observer should be assumed to know when the court is determining an application for judicial disqualification on the ground of apprehended bias”.
The relevant law in relation to disqualification
A two step test was prescribed in Ebner v Official Trustee in Bankruptcy; Cleane Pty Ltd v ANZ Banking Group Ltd (2000) 205 CLR 337 at 345. First, it must be identified “what it is said might lead a judge … to decide a case other than on its legal and factual merits”. Secondly, “[t]here must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”. It was also held in Ebner that the question of the apprehension of bias is one of possibility, that the apprehension is real and not remote.
The comments of Dawson J in Re JRL: ex parte CJL (1986) 161 CLR 342 at 371-2 are also of assistance in this case:
It is an understandable tendency to assume the existence of a reasonable basis for supposing bias where there is, as in this case, an apparent departure from the proper standards of judicial behaviour. But the whole of the circumstances must be considered and such a conclusion must be firmly established and should not be reached lightly … Moreover, the whole of the circumstances are not confined to the conduct said to afford reasonable grounds for suspecting a lack of impartiality. They include what was done by the judge subsequently, which may be sufficient to eradicate any reasonable apprehension of bias notwithstanding an earlier lapse in the observance of proper procedures.
Conclusion
Having regard to the submissions made in respect of the disqualification appeal (EA 64 of 2010), it can be concluded that the appeal should not be allowed. While a number of remarks made by the trial judge no doubt appeared to the wife to be a pre-judgment or favouring of the husband and his lawyers, in the context of the nature of the proceedings careful analysis shows that this is not so.
Even if some of his Honour’s remarks gave the impression of pre-judgment, there is no substance to the assertion that Le Poer Trench J will decide the matter other than on its merits.
It was submitted by the appellants’ senior counsel, that there would be no need to consider the leave to appeal application should the disqualification appeal be successful. In view of my opinion in the matter, it is necessary to consider the other appeal.
Leave to appeal (EA 79 of 2010)
In a notice of appeal filed 7 July 2010 the appellants seek leave to appeal from interlocutory orders made by the trial judge. On 10 March 2010, during the course of the part-heard injunction proceedings in relation to the solicitors acting for the wife, directions were made enabling the appellants to file any further affidavit material on which they sought to rely by 31 March 2010. No affidavits were filed in accordance with that direction. On 12 April 2010, the appellants sought an extension of time to enable the filing of what was said to be expert evidence.
It was submitted by the wife’s counsel, in the course of the oral application, before the trial judge that the extension of time was sought for the purpose of filing an affidavit from an undisclosed legal practitioner in regard to:
… the reason why solicitors don’t put on affidavits in proceedings and the reason is that it’s now recognised there is a serious risk of issues of waiver of privilege arising. [AB2 p.285 l.8]
It was conceded by the wife’s counsel that an extension of time could be restricted to the filing of the evidence of the expert. A minute of the order sought was prepared and provided to the judge. After submissions were heard in relation to the appellants’ application, judgment was reserved until 14 April 2010.
The trial judge indicated his intention to deliver judgment in relation to the leave application prior to disposing of the disqualification application. On the date the judgment was due to be delivered the appellants asked that the delivery of the leave judgment be deferred.
The trial judge refused the appellants’ application to postpone the delivering of judgment. The appellants’ application for leave to file an affidavit from an expert out of time was dismissed.
It is submitted that the nature of the expert evidence was intended to demonstrate that there was an innocuous reason for the absence of evidence from the wife’s solicitors. The appellants required an extension of nine days to file such evidence. It is the argument of the appellants that such leave should have been granted and then his Honour would have been able to consider “whether such affidavit should be allowed in light of its contents and any arguments that may have flowed from its filing”.
The husband opposes the application for leave to appeal and asks that the appeal be dismissed. The husband asks for his costs.
Should the application for leave to file out of time be allowed, the following order is sought by the wife and the solicitors:
3.That the order made by Justice Le Poer Trench on 14 April 2010 be set aside and in lieu thereof, the following order made:
Leave is granted to the Wife and other Respondents to file, within 28 days, adversarial expert evidence concerning current practice among legal practitioners with regard to swearing affidavits in client’s proceedings. (original emphasis)
Grounds of Appeal
It is submitted that the refusal of the trial judge to allow the expert evidence to be filed demonstrates an error of principle and that this error resulted in a substantial injustice to the wife. Further, that the trial judge applied the incorrect test in refusing the application of the wife and her solicitors for an extension of time to file evidence.
There are seven grounds of appeal outlined in the notice of appeal filed 7 July 2010. To determine the leave application (no doubt the decision as to whether leave is granted will inform the decision about the substantive appeal) each ground of appeal and the arguments submitted on behalf of the appellants require consideration.
Ground 1
In this ground of appeal it is asserted that “[h]is Honour erred in refusing the wife and other appellants’ application to defer delivering judgment until the applicants’ application in a case concerning disqualification was determined”.
It is the position of the wife and the solicitors that in view of the application before the judge to disqualify himself from the proceedings, this application, for an extension of time, an application which is correctly characterised by the wife and the solicitors as “procedural” in nature and “which in no sense could be considered urgent” should not have been determined first. It is contended, that the correct course of action would have been for the trial judge to defer the delivery of the judgment pending the outcome of the disqualification application. The failure to do so, as the appellants submit, further reinforces the appellants’ arguments in respect of the apprehended bias perceived to have been shown towards the appellants.
The reasons for refusing to defer the matter are brief and are contained exclusively in the following extracts from the trial judge’s reasons for judgment:
1.An application is made on behalf of the respondents that I defer delivering judgment in relation to the application which was made on 12 April 2010 and argued on that day and which has subsequently been the subject of written submissions. The application seeks that the respondents be permitted to file an affidavit, limited to adversarial expert evidence, stating the alleged current practice among legal practitioners, practicing in the court, with regard to swearing affidavits in clients’ proceedings.
2.The application is supported by a submission that it would be more appropriate to deal with the application for disqualification first on the basis that if that application was acceded to then all of the outstanding interlocutory matters should then go to another Judge.
3.On behalf of the husband, Mr Richardson opposes the deferring of the judgment. It is submitted the judgment should be delivered. He points out that the application for the expert evidence was made after the application for disqualification had been filed and, obviously, in full knowledge of it. The application has been run. Time, effort and cost have been put into the hearing and the judgment should be delivered.
4.For my part, I am in a position to deliver judgment now. In my view, the application for deferral should be refused. The matter has been argued, I have reserved to prepare the judgment and I am now ready to do so. If it transpires that I am not disqualified from further hearing the matter then it is one less event which will be required in the progression of the case to final determination.
Grounds 2 & 3
In written submissions it is said that these grounds demonstrate, respectively, that “[h]is Honour erred in taking account of reasons, as formulated by his Honour, as to why proposed expert evidence may not achieve the conclusions sought by the wife and other appellants”, and that “[h]is Honour erred in taking account of the conclusion that proposed expert evidence may not achieve the conclusions sought by the wife and other appellants”.
It is the contention of the wife and the solicitors, in regard to both these grounds of appeal, that the trial judge “mis-directed himself in concluding that the calling of the proposed expert evidence ‘may not be capable of achieving the conclusion sought by the wife’ ”. The appellants submit that “[w]ithout seeing the affidavit, no proper conclusion can be drawn as to whether or not the evidence contained in it is capable of achieving what the Wife seeks to contend”, nor would his Honour be positioned to “form any view about whether expert evidence given by a lawyer on the subject would be relevant or of assistance to the Court”. In my view this submission has some merit.
Grounds 4 & 5
Ground 4 states that “[h]is Honour erred in treating decisions of courts other than this Court as only marginally relevant in the context of the application he was determining”. Ground 5 articulates that “[h]is Honour erred in concluding that only the jurisprudence of this Court was relevant to the application he was determining”. The wife and the solicitors rely on the same arguments in relation to grounds 4 and 5.
It is submitted on behalf of the appellants that the trial judge applied the incorrect test in refusing the appellants’ application for an extension of time to file evidence. Further, that the question should have been whether the evidence should be allowed to be filed subject to the rules of evidence. The appellants submit that his Honour foreclosed the effect of the evidence without even having the evidence in front of him. In dealing with the application, the judge, in his reasons for judgment said:
14.I was told that the proposed expert is a lawyer. The proposed witness has not been named. If I assume that such an expert, as foreshadowed by the wife, was available to give evidence, and without considering the provision in the Family Law Rules 2004 (Cth) (“the Rules”) as to the circumstances in which the Court might entertain an application for the appointment of an adversarial expert as opposed to a jointly appointed single expert, would the evidence so given be capable of achieving the conclusion sought by the wife. It seems to me it may not. There are a number of reasons why I consider that end may not be achieved:
a)There is nothing to say the wife’s solicitor, that is, either of the solicitor respondents would operate their practice based on perception rather than informed decision following careful consideration of the Family Law Act 1975 (“the Act”) and Rules, the jurisprudence of this Court, the writings by learned authors of text on the waiver of legal professional privilege and the decisions of other courts on the topic of waiver of legal professional privilege.
b)Assuming the respondent’s solicitors were practising by adopting an approach which was consistent with the approach specified in the proposed expert evidence, then what have they done to obtain advice, do further research and otherwise inform themselves on the subject of the waiver of the legal professional privilege since 10 March 2010? Although the expert may give evidence of a perception of what might happen in the Family Court of Australia in relation to the filing of affidavits by solicitors, what does the jurisprudence establish on the topic? If the perception is erroneous, how might that achieve the end which the wife wishes to achieve?
c)It is not proposed by the respondents to provide evidence of or to make a submission that it would be impossible for the solicitor respondents to file an affidavit which provides all the relevant facts and materials they wish to canvass in order to rebut or negate any inference or to provide a relevant assurance or give a relevant undertaking without giving rise to an order waiving legal professional privilege.
d)If an order for waiver of legal professional privilege did arise from any affidavit filed by the solicitor respondents, would it be a waiver of all legal professional privilege pertaining to all communications between the solicitor and client, or would it be restricted. If the affidavit was skilfully drafted it is hard to see how the order would be otherwise than a waiver in relation to a restricted group of documents/communications. (emphasis added in bold)
The wife and the solicitors correctly submit that there is no principle of law or practice which regards the approach to the question of the waiver of legal professional privilege of the Family Court as being different from the jurisprudence of other courts. It is asserted, that the trial judge misdirected himself, as evidenced by the following passage from the judgment:
23.None of the decisions referred to above reported a decision where a solicitor for a party to the proceedings filed an affidavit which gave rise to waiver of legal professional privilege. So far as the authorities cited for other jurisdictions are concerned same must be seen to be only marginally relevant as the evidence proposed to be given by the respondent’s expert is relevant to solicitors who practise in Family Law. (emphasis added)
It is submitted that it was not the appellants’ intention to propose calling evidence which was said to be only relevant to family lawyers, as supported by the authorities relied on by the wife and the solicitors, which included reference to “the extra-curial writings of Mr Justice Watts, of the Family Court”.
Ground 6
The wife and the solicitors assert in ground 6 that “[h]is Honour erred in concluding that the jurisprudence of this Court could not properly inform a perception, amongst lawyers who practise in the Family Court of Australia, that the filing of an affidavit by a solicitor for a party will occasion serious risk of bringing about an implied waiver of legal professional privilege”.
His Honour said in the reasons for judgment that:
24.… it is clear that the jurisprudence of this Court could not properly inform a perception, amongst lawyers who practise in the Family Court of Australia (even if it were limited to a perception about practice in the Sydney Registry of the Court), that the filing of an affidavit by a solicitor for a party in proceedings will occasion a serious risk of having their client’s confidential communications made available for scrutiny by the opponents as a result of implied waiver of legal professional privilege.
Similarly to grounds 4 and 5, it is submitted that his Honour should have considered “whether the jurisprudence of Australia could properly inform the perceptions of lawyers who practice in the Family Court”.
It is contended that without the proposed affidavit being filed his Honour was not in a position to formulate conclusions “about the perceptions of ‘lawyers who practice in the Family Court’”. (original emphasis)
Ground 7
Ground 7 provides that “[h]is Honour erred in concluding that proposed expert evidence the subject of the application he was determining could have no application to the facts of the husband’s application filed 24 February 2010”.
Under this ground of appeal, it is again submitted that the trial judge misdirected himself in concluding that the expert evidence would not have any application to the circumstances of the present case. Further reference was made to the reasons for judgment:
25.Even if I accept the evidence of an acceptable expert, to the effect proposed by the respondents in this application, it would have no application to the facts of this case as they currently exist. The making of Order 3 on 10 March 2010 would take this case out of the category where the Court might find it understandable that the respondent solicitors have chosen not to go into evidence because of the stated perception. The making of the Orders on 10 March 2010 must be seen to have given the respondent solicitors sufficient time to properly inform themselves on matters of law, whether by personal research or through obtaining of advice from counsel. In this case the solicitors are parties to the proceedings and they are represented by both senior and junior counsel.
It is the position of the appellants that such expert evidence may have been relevant as, asserted at 3.7.3 in the appellants’ written submissions that:
… such evidence could ground an explanation for the absence of evidence from the Wife’s solicitors which addressed adverse inferences that the husband contended should be drawn from such absence. In this way the proposed evidence could have had a significant impact upon the outcome of the application …
It is further submitted that the trial judge took an unduly narrow approach to the proceedings, as evidenced in the following passage from the reasons for judgment:
26.I have not been told the identity of any lawyer who is willing to provide expert evidence in the nature of that asserted by the respondents. Not only would such a person have to be prepared to provide the evidence, he or she must also be accepted by the Court as having the requisite expertise to do so. If it is a matter of law which the respondents say inform reluctance to file an affidavit then that law can be put before the Court by the respondents in submission in this hearing.
In my view, his Honour was no doubt correct in concluding that submissions could have been made about matters of law, but the intention of the affidavit went beyond questions of general principle and, it seems, was to refer to matters of practice.
Submissions of the husband
As a “[p]reliminary issue” the husband raises “squarely” for consideration the issue of leave to appeal. Counsel for the husband submits “[w]hilst it is recognised that this issue might generally be considered to fall to be determined by reference to the merits of the proposed substantive appeal, this is a proceeding in which additional matters arise for particular consideration concerning any grant of leave”.
In support of this position, the husband submits that due to the procedural nature of the determination, the court should be reluctant to interfere with the decision. Of course, this is generally correct.
The husband relies on Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 in particular the statement of Sir Frederick Jordan in In re the Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323, that “if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice”.
It is the submission of the husband that the trial judge has not made an error of principle. Further, it is contended that his Honour’s decision is not one “which works a substantial injustice to the Appellants” nor is it a decision which is “finally determinative of any rights of the Appellants”.
In the written submissions of the husband, it is emphasised that:
19.… the Court declined to extend a procedural order which had already expired:
19.1absent the proferring of any explanation for non-compliance with the time originally allowed:
19.2absent any basis for finding that the purpose for which the extension was sought could have any relevant to the issues in the proceedings;
19.3absent the evidence in respect of which the leave was sought being available and before the Court; and,
19.4given the preliminary nature of the part-heard injunctive proceedings before the Court.
20.The Respondent contends that the determination is one regularly made in relation to a matter of procedure which does not involve any substantive, or indeed final, impairment of the Appellants’ right such as to warrant appellate interference.
The husband submits that the arguments of the appellants were “artificial” and “the substance of the proposed evidence could only be speculative” because the evidence was not before the court.
It is submitted that it was the decision of the wife and the solicitors to present their case in the manner in which they did. The husband submits that “the Appellants could have elected to obtain the proposed evidence in affidavit form and then approach the Court for leave but clearly elected not to do so”.
It is submitted on behalf of the husband, that the trial judge did not take the approach that is alleged in grounds 4 and 5. In contrast, it is submitted that he considered the authorities identified in an endeavour to determine the relevance of the proposed evidence. In dealing with the authorities, it is said that the trial judge sought to identify the purpose and utility of the proposed evidence and the appellants’ argument.
It is submitted in relation to ground 6 that the trial judge considered all of the authorities identified by the wife and the solicitors and in addition indentified further “potentially relevant decisions of the Family Court of Australia”, before the ultimate decision that all the indentified authorities provided “no support for the contention advanced”.
In response to ground 7, the husband again contends that the manner in which the wife and the solicitors presented their case caused inherent difficulties. It was said, “[t]he substance of the evidence proposed to be adduced was necessarily uncertain and speculative and, without more, the application of such evidence to the facts of the case was also”.
The trial judge’s reference to the undisclosed identity of the proposed expert was made in the context of “identifying the need for appropriate expertise on the part of the deponent”.
Relevant law – leave to appeal
In considering whether the trial judge should have given leave out of time to file the affidavit it is convenient to make reference to Clivery & Conway [2007] FamCA 1435 where the well settled principles referable to granting leave out of time were discussed:
14.The principles emerging from Gallo v Dawson may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining whether the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
·When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
Conclusion
In my view leave should be given to hear the appeal. In the context of this litigation, the refusal to give an extension of time to file the affidavit was an error and may cause the appellants substantial difficulty in arguing this part of the litigation. It may ultimately be that the evidence would have been rejected for a number of reasons, although that is not so plainly obvious, that the affidavit should not have been allowed to be filed and the arguments about admissibility then heard.
I would give leave to file this appeal, give leave to hear the matter as a challenge to an interlocutory order and allow the appeal from that order. Should the matter return to the trial judge he should allow the affidavits to be filed and hear arguments about their admissibility.
If the trial judge meant by his various comments, that in the absence of the solicitor providing an affidavit, the husband’s application would succeed, he was wrong. However, as said in the context of the disqualification appeal, it is not clear that his comments went past the point of discussion and were rather made in an attempt to guide the complex issues with which he was confronted.
Costs
I agree with Finn J that having regard to the submissions made by counsel at the conclusion of the hearing of the appeal, the appellants should pay the costs of the respondent of the appeal and the application for leave to appeal.
Thackray J
I have had the advantage of reading in draft the judgments of Finn and May JJ. As their Honours have explained, this Court is required to determine an appeal against orders made by Le Poer Trench J on 24 May 2010 and an application for leave to appeal against other orders made by his Honour on 14 April 2010.
Dealing first with the application for leave to appeal, I agree with Finn J that time should be extended for the filing of the application, but that leave to appeal should be refused. I do so for the reasons given by Finn J.
In dealing with the appeal against the orders made on 24 May 2010, I agree with Finn and May JJ that the appeal should be dismissed. For the reasons given by Finn J, even if appellable error was demonstrated, the outcome would be the same on redetermination, since a fair minded lay observer could not reasonably apprehend that the trial Judge would decide the case on anything other than an impartial basis.
I am not, however, convinced that appellable error has been demonstrated. Finn J’s reasons for so concluding relate to her concerns about the adequacy of the reasons of the trial Judge, and in particular the way in which his decision was explained by reference to the husband’s submissions, which were attached to his reasons.
The manner in which the trial Judge accepted some of the husband’s submissions and, for reasons given, rejected others, satisfies me that he paid careful attention to the concerns advanced by the wife. Whilst I accept it would have been easier for the reader had his Honour set out each of the wife’s concerns and discussed them by reference to her case, rather than by reference to the husband’s submissions, the result would have been no different. The parties had the wife’s affidavit and the submissions and therefore could, albeit by a process of construction, ascertain the path by which the decision was reached.
It is important to keep in mind this was an interlocutory dispute in proceedings the trial Judge properly identified as having the potential to give rise to “satellite litigation”. As his Honour said, such litigation:
… uses a significant amount of court time. That means other cases waiting to be heard experience longer waiting times. In a time where the judicial resources of the Court are stretched enormously those waiting times become quite unacceptable to most litigants.
Interlocutory applications in “big money cases” tend to create voluminous affidavits. The material to be considered to determine the dispute tends to be far greater than that required by the remainder of the Court’s work. There is created, by the documentation filed in such applications, a view that no expense has been spared in the preparation of the case and/or the impression that the amount of legal costs incurred is almost irrelevant, given the size of the asset pool available for distribution between the parties. The consequence is that the time required hearing and determining the dispute is far longer than ought to reasonably be the case. Another fact which adds to the workload of a judge hearing such applications is the constant unstated threat of an appeal. Judgments delivered in such cases tend to be longer than usual and address more law than usual.
Although it is necessary that the parties and the appellate court be able to discern the rationale of the decision, it cannot be expected that textbook judgments will be produced in every interlocutory dispute. This is especially so in an environment in which, as his Honour observed, judicial resources are “stretched enormously” and litigants justifiably complain about waiting times. Courts cannot function at the level that once may have been expected when they are not provided with adequate resources. Faced with such a dilemma, busy trial judges will inevitably direct their energies to the most pressing cases, of which the present – involving the division of apparently large wealth – could hardly be said to be one.
I consider the trial Judge was justified in taking what might be described as a “short cut” in incorporating in his reasons the submissions of the party whose carefully articulated argument he largely accepted, while at the same time identifying those parts of the submissions which had not found favour.
The appeal should therefore be dismissed. There being no merit in either the appeal or the application for leave to appeal, the appellants should pay the respondent’s costs.
I certify that the preceding one hundred and ninety four (194) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, May and Thackray JJ) delivered on 18 January 2011.
Associate:
Date: 18 January 2011
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