Dunwell & Ors and Dunwell (Disqalification)
[2010] FamCA 433
•24 May 2010
FAMILY COURT OF AUSTRALIA
| DUNWELL AND ORS & DUNWELL (DISQALIFICATION) | [2010] FamCA 433 |
| FAMILY LAW – COURTS AND JUDGES – Application for disqualification – applicant asserted actual prejudgment or a reasonable apprehension of prejudgment – affidavit filed by the wife in support of application |
| Family Law Act 1975 (Cth) |
| Antoun v R (2006) 224 ALR 51 Aon Risk Services Australia Limited and Australian National University [2009] 239 CLR 175 Brown & Brown (No 2) [2007] FamCA 493 Buller Ski Lifts Ltd v Mt Buller Alpine Resort Management Board [2000] VSCA 31 (unreported, Phillips, Charles and Batt, JJA, 9 March 2000) Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55 Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and New Zealand Banking Group Limited (2001) 205 CLR 337 H and N [2003] FamCA 613; [2003] FamCA 1284 Johnson v Johnson (2000) 201 CLR 488 O’Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S) (Unreported, Martin CJ, 14 March 2008) R v Watson; Ex parte Armstrong (1976) 136 CLR 248 Re JRL; ex parte CJL (1986) 161 CLR 342 Smits v Roach (2006) 227 CLR 423 Stephens and Stephens (Stay Application) [2010] FamCAFC 20 |
| APPLICANT: | Ms Dunwell |
| 2nd APPLICANT: | Mulligan Solicitors |
| 3RD APPLICANT: | Mr Volker |
| 4TH APPLICANT: | Ms James |
| RESPONDENT: | Mr Dunwell |
| FILE NUMBER: | SYC | 8682 | of | 2007 |
| DATE DELIVERED: | 24 May 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Le Poer Trench |
| HEARING DATE: | 12 April 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richardson SC Mr Beaumont |
| SOLICITOR FOR THE APPLICANT: | Mulligan Solicitors |
| SOLICITOR FOR THE 2ND APPLICANT: | Mulligan Solicitors |
| SOLICITOR FOR THE 3ND APPLICANT: | Mulligan Solicitors |
| SOLICITOR FOR THE 4TH APPLICANT: | Mulligan Solicitors |
| COUNSEL FOR THE RESPONDENT: | Dr Harper SC Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Kelly |
Orders
The application filed by the applicants Ms Dunwell, Mulligan Solicitors, Mr Volker and Ms James on 6 April 2010 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Dunwell and Ors & Dunwell (Disqualification) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 8682 of 2007
| MS DUNWELL |
Applicant
And
| MULLIGAN SOLICITORS |
2nd Applicant
And
| MR VOLKER |
3rd Applicant
And
| MS JAMES |
4th Applicant
And
| MR DUNWELL |
Respondent
REASONS FOR JUDGMENT
Before the Court there is an application filed by the wife, Mulligan Solicitors, Mr Volker and Ms James, all of whom seek that I disqualify myself from the further hearing of these proceedings. 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.
The applicants have provided a list of authorities upon which they rely, together with a written outline of submission. The respondent has provided a written outline of submission. Both outlines are far more than mere indications of their case and contain quotations from authorities.
The applicant’s outline of case specifies particular portions of the transcript of the proceedings of 8 and 10 March 2010.
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 or cumulatively demonstrate actual prejudgment or a reasonable apprehension of prejudgment.”
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.”
Each of the applicants and respondent have extensively quoted passages of law. The husband provided me with a copy of the decision of Justice O’Ryan delivered at Sydney on 29 May 2007 in the matter of Brown & Brown [2007] FamCA 493 and directed my attention to paragraphs 187 to paragraph 206 (inclusive). Contained in that Judgment is a very comprehensive analysis of the principles relevant in the consideration of an application to disqualify a Judge from the further hearing of a matter based on a determination of apprehended bias. The applicants have not referred me to any High Court decision post 2006. They did refer me to two 2006 decisions - Smits v Roach (2006) 227 CLR 423 and Antoun v R (2006) 224 ALR 51, which have not been quoted by Justice O’Ryan in the decision of Brown & Brown (supra).
The first thing I note about the authorities referred to in the decision of Brown & Brown (supra) is that in the decision of R v Watson; Ex parte Armstrong (1976) 136 CLR 248 the majority of the High Court of Australia (Barwick CJ, Gibbs, Stephen and Mason JJ, Jacobs J dissenting) included in their statement of principal the term “the parties” in reference to those persons or entities reasonably suspecting that a judge was not unprejudiced and impartial. In Johnson & Johnson (2000) 201 CLR 488 there is no reference to a consideration of the parties’ view of the judge but rather the test is confined solely to “…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…” (at 492, per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). It is because of that change in approach by the High Court of Australia that I made comment earlier in these reasons to the fact that the wife had herself sworn an affidavit.
In the decision of Johnson v Johnson (supra) the High Court spoke of the assumptions to be held by the Court in relation to “the fictional reasonable observer”. The majority said (at 493, footnotes omitted):
“At the same time, two things need to be remembered; the observer is taken to be reasonable; and the person being observed is “a professional judge who’s training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial.”
The Court further said:
“…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.”
In the decision of Brown & Brown (supra) his Honour Justice O’Ryan quoted from the High Court of Australia’s decision in Re JRL; Ex parte CJL (1986) 161 CLR 342 and in particular from the decision of Mason J at pages 351 and 352. His Honour Justice O’Ryan was thereby pointing out qualifications to the principle as enunciated by the High Court of Australia relative to judicial disqualification arising from apprehended bias.
His Honour Justice O’Ryan in Brown & Brown (supra) referred to the decision of Dawson J in Re JRL; Ex parte CJL (supra) for the purpose of emphasising that what might be considered as departure from the proper standards of judicial behaviour does not in itself establish the reasonable basis for apprehension of bias. Dawson J said (at 371, footnotes omitted):
“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.”
Further, Dawson J said (at 372):
“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.”
I note some matters arising from the transcripts of 8 and 10 March 2010. The first matter arises at page 2 of the transcript of 10 March 2010, which was the opening of the hearing on that day. Dr Harper SC, who appeared on behalf of the respondents to the application being considered, provided to me a written outline of case. This was handed up in Court. The transcript (on page 2) makes it clear that I was uncertain which case was being addressed by the case outline. Counsel for the wife made it clear that the case being addressed was the respondent’s case in answer to the husband’s application filed 24 February 2010. It is clear from the transcript that I did not, at that time, have an opportunity to read that case outline as the task immediately at hand was the consideration of objections being raised to the wife’s affidavit.
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.
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.
At paragraph 202 of Justice O’Ryan’s decision in Brown & Brown (supra) his Honour sets out material under the heading “Case management”. At paragraph 203 his Honour refers to the High Court of Australia decision in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55. In that decision the Court referred to the earlier decision of Johnson & Johnson (supra) at 493 where the following was said (footnotes omitted):
“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 start 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.”
Having cited the quoted passages his Honour Justice O’Ryan then said as follows at 203 (footnotes omitted):
“…Callinan J made poignant comments in relation to the Federal Court docket system at [175] and noted that the judge’s sometimes unfortunate expressions in “strong language” in this case needed to be understood in the context of how the Federal Court now operates:
This system has its disadvantages and dangers. On the one hand, the trial judge will be well educated in many of the details of the case on each side by the time that the hearing starts. But on the other hand, it may sometimes be difficult for the trial judge, apparently fully conversant with the facts and issues, not to have formed some provisional view at least of the outcome of the case.
At [176]:
I mention these matters because in sum they may well incline a trial judge towards a degree of outspokenness of a kind to which he or she would not be inclined in a conventional trial on largely oral evidence. That this is so does not provide any excuse for the manifestation of apparent bias on the part of a trial judge but it may explain why a judge finds himself or herself speaking more candidly and strongly than he or she might otherwise do, or even have been able to do, in the past or in other jurisdictions. The question nonetheless remains whether the fair-minded lay observer might reasonably have apprehended that the judge might not be bringing an impartial and unprejudiced mind to the resolution of the questions he was required to decide.”
Under the heading “Public Interest Considerations” his Honour Justice O’Ryan also considered aspects of the High Court decision in Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and New Zealand Banking Group Limited (2001) 205 CLR 337 and then went on to say (at 206):
“Whilst a concurrent situation has not arisen in this case, this passage serves to highlight that public interest considerations, which in this case involve things such as the time and money which would be incurred by another judge familiarising him/herself with the matter (especially in light of its complication and length), the implications for the administration of justice as a result of potential perceptions of ‘judge shopping’ (especially as I have already made final orders adverse to one party) and so on, are significantly relevant to the determination of apprehension of bias problems.”
In the High Court of Australia decision of Antoun v R (2006) 224 ALR 51 separate decisions were delivered by each of the five Judges sitting on the appeal. Chief Justice Gleeson, Kirby, Callinan, Heydon and Hayne JJ all agreed that the appeal should be allowed, the orders of the Criminal Court of Appeal of NSW set aside and that the conviction of the appellant be quashed and there be a new trial. The Appeal from the NSW Court of Appeal followed an unsuccessful appeal to that Court for the convictions to be set aside. The sole ground for the appeal to the High Court of Australia was that the Judge conducted himself so that a fair-minded observer might reasonably apprehend that he might not bring an impartial and unprejudiced mind to the resolution of the question of whether the appellants ought to be convicted. In the decision of Kirby J under the heading “Forthright expression crosses the line” the following appears in paragraph 27- 30 of the judgment (footnotes omitted):
“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.
28. One of the advantages of a judge-alone trial is that it permits greater efficiency in the isolation of the real issues that will determine the case. Nevertheless, normally at least, it is essential that the judge give parties or their representatives at least some time to advance their submissions. This is because, however abbreviated proceedings may become by reason of pre-trial procedures, the tender of written submissions and other innovations, in a trial (particularly a criminal trial where liberty is at risk) the process conducted in public has its own significance and purpose. The manifest observance of fair procedures is necessary to satisfy the requirements not only of fairness to the accused but also of justice before the public so that they may be satisfied, by attendance or from the record, that the process has followed lines observing basic rules of fairness. Excessively telescoping the procedures in such cases can lead to a sense of disquiet on the part of the accused, and of objective observers whose attitudes, where relevant, must be represented, and given effect, by appellate courts.
29. A line is drawn between forthright and robust indications of a trial judge's tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings. Sometimes, that line will be hard to discern. But, in this case, I agree with the other members of this Court that the trial judge crossed it.
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.”
In the judgment of Justice Callinan, extracts from the transcript before the Trial Judge appear. I do not restate what there appears, however, I have noted the contents of paragraph 68 through to paragraph 75. The 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.
In the written outline of argument on behalf of the applicants my attention is drawn to particular quotations from relevant authorities. I do not repeat those here because quotations from the same cases and others have been referred to by me earlier in these reasons.
It is submitted on behalf of the applicants that the decision in Re JRL; ex parte CJL (supra) is still good law, in that a reasonable apprehension by one of the parties, as opposed to a consideration only of the views of a fictional “fair minded lay observer”, still remains the relevant test. I consider that submission is probably wrong given the High Court decisions in Johnson v Johnson and Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd (supra) and Antoun v R (supra). The benefit of applying the “impartial observer” test, especially to Family Law cases, is that the observer is not seen to have any impairment of reasoning or judgment arising from exposure to emotional turmoil either in them or from the other party. The test being proposed by the applicants, as best I understand it, is that the applicant wife’s stated concerns should be tested through the eyes of the “impartial observer”. I really can not see the necessity for such a requirement in the light of the decisions of the High Court of Australia above referred to. Nonetheless, the submission on behalf of the applicants is that the determination of whether the apprehension by a party would be reasonable requires an application of an objective test. It may well be that, although stated differently in the written submission, there is no real difference in approach in that submitted by the applicant to that submitted by the respondent.
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.
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”
b) Those submissions appearing on page 3 under the heading of “The Summary of Argument document – (paras 17 -21 and para 22).”
I make the following comment in relation to that submission. Criticism of this submission was made by the applicant’s Counsel, in that it assumes the “impartial fair minded observer” would have the benefit of advice and or further information from a legal representative of one of the parties. I do not accept that the decided cases which have been referred to by myself, the applicants or the respondent ascribe such an attribution to the “fair minded observer”. However, the authorities do say that all of the circumstances need to be taken into account. One of the circumstances in this case is that two of the applicants are practicing lawyers who have been acting for the wife in these proceedings since the inception of the proceeding December 2007. The name of the firm, Mulligan Solicitors, and the names of each of Mr Volker and Ms James are not unfamiliar to me and my knowledge of their practice in this Court comes from seeing their names on various documents which have been filed in the Court and which I have observed as part of my ordinary function as a Judge. It is clear, therefore, that those three applicants have a close professional relationship with the wife and must be seen to have a good working knowledge of judicial practices in this Court.
Although it is clear that the test to be applied in determining this application, is that stated by me earlier in these reasons, there are other considerations which need to be taken into account in the event of my concluding that the “fair minded observer” should reasonably be seen to have apprehended that through my conduct I had prejudged the application then before the Court for determination.
I also say, as an addition to the submission under consideration, that the words of the High Court in Johnson v Johnson (supra) at page 493, (which are repeated on pages 4 and 5 of the respondent’s submission) are apposite to all of the submissions of the applicants.
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.
General comment
This case is illustrative of the type of litigation which attends disputes in this court which are considered “big money cases”. “Big money cases” are so described because they are property/financial cases where it is agreed or alleged that the assets for distribution between the parties exceed about $10 million. Frequently, in such disputes, the court is required to deal with what has become known as “satellite litigation”. That is the determination of many interlocutory applications including contempt and enforcement applications. It seems that many of the types of disputes which arise between parties in other financial cases heard in the Court and which are predominantly resolved between the parties with the assistance of their lawyers, are not capable of being so resolved in “big money cases”.
“Satellite 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.
Parties in “big money cases” who require the determination by the court of interlocutory disputes, which the court might expect could have been resolved in the usual manner between the parties, should expect a more robust approach from the judge hearing the case. This is a fact or circumstance which 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. It is this circumstance to which the words of the High Court in Johnson v Johnson (supra, footnotes omitted) refer, namely:
“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.”
The words set out by me under the above heading are not novel. The High Court of Australia in Aon Risk Services Australia Limited and Australian National University [2009] 239 CLR 175, spoke of the different approach which litigants and lawyers should expect in modern litigation. The Court considered that (per Gummow, Hayne, Crennan, Kiefel and Bell JJ at 217, footnotes omitted):
“In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.”
In O’Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S) (Unreported, Martin CJ, 14 March 2008), Martin CJ in the Supreme Court of Western Australia discussed cases involving “satellite litigation”. Although “satellite litigation” is often referred to in the context of cost proceedings, I find his Honour’s comments (at paragraph 5) of particular relevance in this case:
“Disputes of this kind relating to costs of the parties to a trial are sometimes described in other jurisdictions as ‘satellite litigation’. I must confess to a preference for the rather more pejorative description of disputes of this kind as ‘parasitic litigation’. I use the term because litigation of this kind in relation to costs has the distinct tendency to sap the energy of the parties and their legal advisers and the court, and to distract legal advisers and the court from getting on with the other more important issues including the resolution of substantive disputes.”
In Buller Ski Lifts Ltd v Mt Buller Alpine Resort Management Board [2000] VSCA 31 (unreported, Phillips, Charles and Batt, JJA, 9 March 2000) referred to disputes which are described as “satellite litigation”, and Phillips JA in the Victorian Supreme Court of Appeal (at paragraph 43 said):
“This Court has said more than once that disputes over costs must not be allowed to develop into a sort of satellite litigation that occupies argument disproportionate to either the main issue or the costs themselves, and that is something which this court will not overlook.”
The abovementioned decisions in O’Rourke v P & B Corporation Pty Ltd (supra) and Buller Ski Lifts Ltd v Mt Buller Alpine Resort Management Board (supra) were referred to by the Full Court of the Family Court of Australia in Stephens and Stephens (Stay Application) [2010] FamCAFC 20, which was a case which their Honours (May, Boland and O’Ryan JJ) considered (at paragraph 28) to have involved “…considerable delay, largely due to the number of interlocutory applications required.”
To conclude, I propose to dismiss the applicants’ application filed 6 April 2010.
I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench
Associate:
Date: 24 May 2010
APPENDIX I
[Dunwell v Dunwell & Ors]
RESPONDENT HUSBAND’S OUTLINE – DISQUALIFICATION
Principles
A recent and convenient summary of relevant principle is to be found in the judgment of O’Ryan J in Brown and Brown & Ors. [2007] Fam CA 493 at paragraphs 187 to 206 (copy to be provided). In addition, dealing with the issue of relationship/association with or predisposition towards counsel appearing for one of the parties the relevant principles are summarised by Guest J in Landy v Landy (2005) FLC 93-245.
The Respondent’s position
The respondent contends that the application is without basis and should be dismissed.
The contentions are in many respects wild and fanciful. At all points the court must remember that the hypothetical observer is both fair minded and objective and “is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial””: Johnson v Johnson (2000) 201 CLR 488 at 493.
Further, the serial assertions that are advanced on behalf of the respondents (and it is to be observed that this is an application not only by the wife but each of the second, third and fourth respondents, but only supported by evidence of the wife) fail to recognise and meet the two step test described in Brown (supra) at paragraph 197: (see also discussion in Landy (supra) at para 14 as to the “rational link”).
At the outset:
In considering the application of the relevant principles to the present case the nature and form of the proceeding needs to be particularly recognised. When the hearing commenced on 8 March each of the parties had declared themselves to have filed all the evidence upon which they intended to rely. The application was interlocutory[1] and in accordance with the practice of this court there would not be oral evidence or cross examination without leave, which is granted in limited circumstances.
[1] This was the contention of the present applicant on 8 March and they must be bound by it.
The central piece of evidence from which the case springs is a letter. Despite the fact that in subsequent correspondence the respondent’s solicitors had sought to advance propositions about what the letter means, perhaps the intention of the authors and the circumstances in which the letter was written nonetheless, the letter (to adopt a truism) says what it says.
This is important in considering discussions that took place as to the significance of what is said in the letter, what it means and what the court may draw from its content.
In applying the relevant principles the foregoing is to be starkly contrasted with a hearing where, in early discussion between the bench and the bar table, the court does not have the totality of the evidence (the most substantial contrast would be to a criminal trial before jury where all of the evidence was yet to come orally from witnesses in each case).
The application was one that invited the adoption of a summary procedure. By the time your Honour came on to the bench your Honour had read the totality of the evidence. Any discussion thereafter (which we contend was absent of any expression of final view about any matter) was a discussion predicated upon a knowledge of the evidence.
The foregoing is to be recognised as part of the realities of this particular piece of litigation and an important setting within which the present application is to be determined.
The particular allegations advanced by the wife and relied upon by all respondents.
These allegations are set out in the wife’s affidavit sworn 1 April 2010. Paragraph references are to that affidavit.
It is proposed to provide a summary of the responses to the issues raised in the basic order from which they fall in that affidavit.
The Summary of Argument document – (paras 17 to 21 and para 62).
The informed and fair-minded observer would no doubt be informed by those who represent the wife (and in whom clearly she has considerable faith) that in modern litigation in this court and others it is common, if not routine practice, for the legal representatives of the parties to provide to the court a written outline of their case, irrespective of any particular directions requiring them to do so.
This practice would be identified as all the more routine in cases where the court is being asked to consider some proposition of law or principle that is in some way novel (as is the case presently).
To the extent that your Honour referred implicitly to knowledge of that practice, putting it beyond knowledge of the general, your Honour’s reference at para 20 (to an expectation of knowledge on Dr. Harper’s part) would not only draw upon general practice but the experience of this particular case. For example, both your Honour and the respondents would recall that at the early stage of these proceedings when the application for interim parenting orders was heard we then provided your Honour and our opponents with a substantial case outline addressing both the facts and principles.
The exchange contained in the first sub-paragraph of paragraph 62 of the wife’s affidavit (wrongly numbered as paragraph 58.1) “I thought…you must have been on holidays…” was, as a fair reading of the entire passage of the transcript makes clear, a fashion of expressing the same issue, namely the expectation that there would have been some summary of argument provided and seemingly acknowledged by Dr. Harper (page 4 line 29) when he said “….normally, if there is, it comes from him prior to the hearing date…”
The contention contained in the final sentence of paragraph 21 is unsupported by any reasonable analysis by an objective observer and ought not have been the subject of the affidavit.
The construction of the letter – (paragraphs 22 to 27)
The point made at the outset about the nature and form of the proceedings is apposite to a consideration of these arguments. The letter speaks for itself and the discussion here and elsewhere was an entirely proper exploration of views between the bench and bar. In this context the words of Gleeson C.J., Gaudron, Gummow and Hayne JJ in Johnson (supra) at 493 are instructive where it is said:
“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 into court expecting a judge to remain, until the moment of pronouncement of judgement as inscrutable as the Sphinx. In Vakauta v Kelly, Brennan, Deane and Gaudron JJ, referring to both 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 express a certain tendency of mind, are not on that account alone to be taken to indicate pre judgment. Judges are not expected to wait until the end of a case before they start 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 in hearing those opinions, and being given an opportunity to deal with them.”
(my emphasis)
These are no more than examples of “dialogue between bench and bar which is so helpful in the identification of real issues and real problems in a particular case.”
The dialogue cited at paragraph 22 of the wife’s affidavit might be read to suggest that your Honour was the first to raise the issue concerning the absence of evidence from Mr [Volker] and Ms [James]. This is not the case as that very issue and the potential consequences that the husband would contend for in the proceedings was the subject of the letter of 24 February 2010 which became Exhibit H1, received at page 6 of the transcript.
The discussion at paragraph 24 of the wife’s affidavit is not more than an exploration by your Honour as to the submission being made on behalf of the respondents.
The propositions advanced at paragraph 25 are both illusive and inappropriate. The contended allegation of tone and demeanour is left entirely unexplained. It is not something that your Honour would acknowledge, in fairness, as being in any way appropriate. The allegation that your Honour engaged with Dr. Harper in “an antagonistic and provocative manner” is entirely unfounded and certainly drew no objection or reservation from Dr. Harper at the time. The contrast drawn with your Honour’s discussions with myself are similarly unexplained and unfounded.
In fairness to the wife, perhaps these perceptions are inevitably clouded as a perception coming from a party with a very real interest in the proceeding. The point is that the relevant test is not to be determined by the subjective views of such a party but the objective views of the hypothetical reasonable observer.
The further point to be made is that in addition to the absence of any comment about this matter having been made by Dr. Harper, none of the other applicants for disqualification (and notably Mr. [Volker] and Ms [James] were in court throughout the proceeding on 8 and 10 March) have sworn an affidavit deposing to having perceptions in any way similar to those of the wife. It can be safely assumed that either they did not have such perceptions, or they accept that unclouded by an interest in the proceedings a reasonable observer would not hold such perceptions. This point is relevant to a number of the contentions made by the wife as to her conclusions as to demeanour and attitude which are unsupported by either Dr. Harper at the time, Mr. [Volker] or Ms [James] in evidence. Whilst the submission is relied upon in each of those instances it will not be repeated.
As to paragraphs 26 and 27, sub para (ii) is met by the introductory submissions.
The comments quoted made by your Honour are drawn from an understanding of the history outlined in the husband’s affidavit of the issues raised early in the proceedings as to his concerns about confidentiality, and particularly in so far as that may potentially transgress his relationship with Mr. [G].
These matters and the present hotly contested litigation are clearly what constituted the “highly suspicious environment” that is referred to.
There is nothing in this point.
Lawyers not filing affidavits (paras 28 to 36)
These contentions fail to appreciate that your Honour had read the evidence and the discussion was on an informed basis.
The dialogue quoted provides nothing more than examples of an exploration of the contentions of the parties on a matter that was flagged as being of significance from the very beginning. All that is quoted was subject to the tender of exhibit H1. It follows from an examination of the clear terms of the letter and conscious that on the topic that there was controversy as to whether the respondents should be permitted to introduce into evidence by annexure to the wife’s affidavits the letters that the solicitor respondents had written on 20 October 2009 and 17 November 2009 (annexure “D” to wife’s affidavit 19 January 2010).
As to paragraph 30 and following the contentions that the wife makes at para 31 are contrary to what the fair-minded observer would have taken from the passage quoted (particularly if the full paragraph is read in context of the discussion rather than simply the excerpt).
This discussion takes place where Dr. Harper has made it clear that other than potentially dealing with the balance of objections, it was his position that the application should be adjourned to provide his clients with the opportunity to consider the judgments and anything that may flow. Here, quite favourably to the respondents (rather than “to assist [the husband]”) your Honour was again inviting the respondents to reflect upon the potential consequences, no doubt bearing in mind the contrary case that was being advanced of the issue being determined absent of any evidence from the solicitors.
As against the background of the letter of 24 February (exhibit H1) and the clear statement that the solicitors did not intend to file evidence, your Honour would have been entirely entitled to remain mute on the topic rather than encouraging them to take a course that may ultimately assist them.
Importantly the whole issue flows from the debate that had been taking place about the potential relevance of the absence of such evidence from the beginning of the hearing.
As to paragraph 32, the relevant evidence from the solicitors would surely be to place into evidence that which they had stated in the letters of 20 October and 17 November. Cross examination of either the husband or the wife would provide nothing on the topics the subject of those letters (i.e. primary evidence of what the solicitors had or had not done or had intended to do).
Paragraph 33 will not be seen as the concern of a fair minded observer. The comment quoted from page 37 draws upon a debate in which the husband contended that to admit the evidence comprising the solicitor’s views pursuant to s.75 Evidence Act would be unfairly prejudicial to him and the point of the obvious paradox emerged when Dr. Harper made clear (a proposition he had put by this stage on a number of occasions) that his clients wish to have the husband cross examined. Your Honour’s comments merely, and quite properly in terms of the discretion that you were ultimately to be asked to exercise, drew upon this proposition as underlining that it would be an unbalanced matter for the respondents to be permitted to cross examine the husband whilst they were advancing evidence of their actions and minds through correspondence annexed to the wife’s affidavit upon which they could not be cross examined (or at least they were seeking to do so).
Surely the hypothetical fair-minded observer has the benefit of advice from their lawyers to explain some of these matters and their significance and in no way can these propositions support the contention in paragraph 35 that this fair-minded observer shall conclude that she will “not receive a fair hearing because of this”.
With respect the content of para 36 is a nonsense. The material that was struck out was as a result of rulings based upon proper legal principle. Those are not matters for which any connection has been advanced by the respondents to demonstrate any apprehension of bias flowing from your Honour. They remain matters which if, wrongly decided, may be the subject of an application for leave to appeal when the proceeding is concluded.
Question to Richardson – “is that enough for your application to succeed” (paras 37 and 38)
The instance cited could in no way leave the reasonable observer with a belief that your Honour has predetermined the issue and hold a belief that the husband has succeeded.
Although not apparent from the wife’s affidavit the passage quoted at paragraph 37 appears at page 23 line 45 of the transcript and the passage subsequently reproduced commencing on page 13 of the affidavit commences at page 22 line 36.
Importantly (although not quoted in the passages reproduced in the affidavit) the question “is that enough……” was preceded by a lengthy statement by myself but, it is tolerably plain, that the question that your Honour posed arose from the proposition at the very end (page 23 line 39) where after describing the history of the husband making clear his concerns concerning preserving his confidential relationship with Mr. [G] I said:
“The starting point is to engage people [referring to the US lawyers] 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 a discretion ---”
The comment by your Honour would not be interpreted by the fair-minded observer as a statement that therefore the husband ‘wins’, or an indication that your Honour has predetermined the case.
Fairly read (and consistent with how these discussions unfold in cases regularly particularly having regard to my response) it was clearly not a statement but an enquiry as to whether it was the husband’s case or contention that if the court accepted the proposition advanced that that issue alone should be enough for us to succeed and nothing more.
The wife advances no contention about the latter part of the material on page 13 of her affidavit. However, if it is to be inferred that your Honour was in some way discourteous of otherwise towards her solicitors by the inadvertent reference to Murphy’s law it was clearly unintended, (your Honour disclosed a slip of mind) and indeed was treated jovially by all in the court at the time.
Allegation that lawyers are “hiding behind me” and I am unable to give evidence about certain matters (paragraphs 39 to 46).
The submissions already made on the topic of the absence of affidavits from the solicitors are apposite.
The discussion presently quoted advances the matter no further. The term “hiding behind their client” is no more than a reference to the anxiety to have admitted the letters of 20 October 2009 and 17 November 2009 through an affidavit of the wife.
The reference that she “can’t be asked any legitimate question about it” is clearly a reference to the primary facts that were controversial in the two letters because they were references to matters coming from the minds or intentions of the relevant lawyers, a topic of which the wife could have no direct knowledge and therefore could only relay that which she had been told. This is made clear in the question that your Honour asked in the second last quoted paragraph on page 15 (if it was in doubt before hand).
Bearing in mind the nature of the content of the letters and the topic being discussed the challenge to Dr. Harper that followed from the submission that he was advancing was both obvious and appropriate.
As to paragraph 32 no reasonable observer could be “personally offended” from the comments, or at 43, to consider the comments in relation to “useful evidence” bearing in mind the context of the discussion to be “condescending and presumptuous”. No part of the debate was an attack upon the integrity of the lawyers but rather in the context of the issues of admissibility that were under discussion and relevance to the proceedings, simply a discussion about the absence of their evidence.
As to paragraph 44 the contention is unfounded.
The comments referred at paragraphs 45 and 46 would not provide any offence to the reasonable observer. The reasonable observer would have been conscious (as must the wife have been) that these comments were directly applicable to the form of the paragraph under objection and a discussion within the content of the rules of admissibility. It dealt with paragraph 26 of her affidavit which on the clear form of the paragraph, your Honour’s comments were entirely appropriate. There was no disclosure of the source of knowledge of the wife in relation to the source of the documents. It is to be borne in mind that the paragraph was solely about documents, not about her knowledge of other matters.
However, on the broader topic (which seems to offend at paragraph 46) it is to be remembered that at paragraph 9 of the husband’s affidavit sworn 7 December 2009 he quoted from an affidavit sworn by the wife on 11 August 2008 in which she stated:
“Throughout the marriage, [the husband] did not disclose to me the particulars of his business dealings and I now have little information to offer my lawyers, counsel and partisan accountant (sic) to assist them to advise me on my entitlement.”
That paragraph is not put in issue by the wife.
Unsolicited suggestion as to waiver of privilege (paras 48 to 57)
No fair reading of the transcript would suggest (as the wife suggests at paragraph 51) that this was an invitation to make such an application.
It is to be remembered that this discussion emerged in the context of objection concerning paragraph 29 of the wife’s affidavit. In the discussion that commences on page 10 line 33 and continuing to page 11 at line 10, I articulated to your Honour part of the basis of the objection as reliant upon section 135 or 136 Evidence Act and in the course of that advanced the proposition that the content of the paragraph:
“doesn’t reveal, as a matter of opinion, the basis upon which the conclusion has been reached, or the path of reasoning by which it has been reached. So even on a hearsay basis, that must be available, and that, again, goes to the fairness of our ability then to test it.”
These are the same elements that go to the issue of implied waiver and it was a natural flow of the discussion as to whether, raising those matters in the way that I had, that your Honour would enquire as to whether it was part of our contention that there had been such an implied waiver.
As to paragraph 53 the basis upon which the wife was “shocked and appalled” or what would lead her mind to that state is not explained. The comment about “precedent judgment” would not be fairly understood by the reasonable observer to mean that your Honour had predetermined the issue and that the answer was simply a matter of precedent but rather (as lawyers practising in the jurisdiction are aware) your Honour has been called upon to determine similar issues on a number of occasions and your Honour’s deliberations on those matters have constituted a not insignificant part of the jurisprudence of the court. If anything your Honour’s comments would be fairly interpreted as bemoaning the proposition that you were to be burdened with that task again. The point of your Honour’s previous involvement is borne out by the first three cases cited on the present applicant’s list of authorities.
The concerns that the wife expresses in paragraph 54 could only be relevant if it had been suggested to her by her lawyers that your Honour’s determinations were contrary to law or that they had knowledge of every determination on issues of waiver that your Honour had ever heard and were able to speak to all of them.
As to paragraph 55 the content and assertions of “good practice” are entirely unconvincing and for reasons addressed in our submissions today on the expert evidence issue it is apparent that the wife has been taken to an erroneous belief by her solicitor’s advice of “numerous cases” including “several” by your Honour.
Comments about my affidavit – (Paragraphs 58 and 59)
This comment followed a lengthy period dealing with objections (with a very large measure of success) to the affidavit of the wife which included many endeavours by her counsel to explain what statements in the affidavit meant.
The fact is the affidavit is poorly drawn. It was littered with conclusions rather than statements of fact; it put forward evidence on information and belief without stating the source, and propounded statements without identifying the source of the deponent’s knowledge.
In many instances there were discretions exercised in the deponent’s favour including the granting of leave to adduce further evidence. A fair-minded observer would not have formed the view that the applicants contend for.
Relationship with Mr. Richardson – (Paragraphs 60 to 67)
Firstly, there is no evidence advanced that your Honour has any relationship with me other than the fact that I appear regularly in a small jurisdiction where there are a limited number of judges and (no doubt in common with the wife’s representatives) I have appeared regularly before your Honour. Prior to your Honour’s appointment we were professional colleagues both appearing in the same jurisdiction and having cases together from time to time but there is no suggestion of any further relationship.
In the course of these proceedings both Dr. Harper and I have appeared before your Honour on numerous occasions.
No part of the evidence will support the contention in paragraph 61 that your Honour’s interaction with myself has at times been “informal, friendly and over accommodating” outside of any proper congenial and professional basis. No part of the evidence advanced would satisfy your Honour that Dr. Harper has been dealt with any differently and it certainly does not establish that your Honour’s interactions with him have at times been “antagonistic, provocative and argumentative”. I highlight that these are matters about which no objection or reservation was taken by Dr. Harper during the hearing, no evidence is forthcoming from the solicitors and no evidence is forthcoming from Mr. Gould, who was present on 10 March. In addressing the particular examples I have already addressed para 58.1.
As to paragraph 58.2 the reasonable observer would conclude nothing of this. Dr. Harper had a copy of the case in his hand at the time. The decision under discussion was novel in the jurisprudence of this court.
Your Honour had been the judge and I had appeared as counsel for the applicant. Whilst the import of the reference to my familiarity with the decision, and indeed your Honour’s, might not have been immediately apparent to the wife, no doubt her concerns would have been immediately allayed by the explanation of her lawyers that the comments were clearly directed to the fact that your Honour had been the judge and I had appeared as counsel in the matter.
This gives rise to no legitimate issue.
As to paragraph 58.3 the exchange was legitimate. The contention being that without the opportunity for testing that as expressed in the letter could have no probative value. The thrust of the submissions that had been advanced on behalf of the husband to reject the letters or limit their use had been that without the ability to test the assertions from the lawyers that the weight your Honour could give to the letters would be nil. The effect of those submissions were clearly understood by Dr. Harper who in response to the question quoted (which really amounted to your Honour saying to Dr. Harper “well on that basis what weight could I give to the letter”) Dr. Harper said as to weight at line 21:
“As my learned friend would say, none, of course. He is a very absolute person. Your Honour could give it no weight, little weight, a lot of weight, but that would be a matter of argument.”
As to paragraph 58.4, this was a discussion about the admissibility of paragraphs 31 to 36 of the wife’s affidavit as to which Dr. Harper explained (line 19) that with new lawyers coming in his client contended that the costs incurred in the past would to some extent be repeated.
The point raised by your Honour (line 25) was to raise the issue that those past amounts provided no idea of what the further fees in new lawyers “getting up to speed” would be. The discussion then exchanged with Dr. Harper maintaining that in some way this would provide relevant assistance, a proposition that your Honour sought to test in discussion (it being the case that paragraph 36 included the statement that Dr. Harper S.C. had been paid $129,910) as to what Dr. Harper was going to charge. The question was substantially rhetorical because clearly in advance of these events nobody could possibly know. This is the proposition that your Honour went on to articulate to Dr. Harper.
The views expressed by the wife in paragraph 63 (which are unsupported by similar evidence by any of the other respondents) could in no way be fairly attributed to the fair-minded observer. The impression gained by the wife in paragraph 64 may again be the view of an interested party interpreting with concern the events that were leading to much of her evidence being struck out.
As to paragraph 67 the example provided was again part of the discussion about admissibility of a statement. Your Honour fairly made the point that it was abundantly apparent that the wife wished to continue to retain her solicitors as that was her position in the proceeding. Her position was not and is not in doubt.
There is nothing that emerges from the foregoing passages that give rise to any proper apprehension of bias.
Conclusion
The respondents contend a case of actual pre judgment or reasonable apprehension of pre judgement (para 20 and 21 submissions). They contend a demonstrable pre disposition for the position and arguments of the husband (submissions para 31) to ultimately conclude that a fair-minded person would reasonably apprehend both pre judgment and bias (submissions paragraph 32).
For the reasons advanced, properly examined, and guided by authority, these claims are unfounded.
As Mason J pointed out in Re JRL; ex parte CJL (1986) 161 CLR 342 at 352 reasonable apprehension of bias by reason of pre judgment must be “firmly established” and:
“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide a case in their favour.”
In the present case the application ought be dismissed.
14 April 2010
Grahame Richardson S.C.
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