ELKIN & WEARNE (No.2)
[2015] FCCA 1881
•2 July 2015 (oral reasons) 22 July 2015 (written reasons)
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELKIN & WEARNE (No.2) | [2015] FCCA 1881 |
| Catchwords: FAMILY LAW – Duty of lawyers to inform the Court fully and in a timely manner (absent cases of urgency) of all aspects of any Application – the duty can be breached (and therefore will likely mislead the Court) if only part of the orders sought in the Application are notified to the Court – full disclosure of orders sought also affects the resources needed (e.g. the allocation of time, and place where heard) – care needed before making any findings of negligence – application for recusal – duty of solicitors to Court including in the filing of accurate affidavits and other documents – conflict between sworn affidavit and documents lodged with Full Court with both prepared by the same lawyers. |
| Legislation: Family Law Act 1975 |
| AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Law Council of Australia: Model Rules of Professional Conduct and Practice, (2002) Best practice guidelines for lawyers doing family law work, the Family Law Council and the Family Law Section of the Law Council of Australia (Second Edition: 2010) G. Dal Pont, Lawyers Professional Responsibility (Fifth Edition) (Sydney: Lawbook Co, Thomson Reuters, 2012) | ||
| Applicant: | MR ELKIN | |
| Respondent: | MS WEARNE |
| File Number: | AYC 11 of 2012 |
| Judgment of: | Judge Neville |
| Hearing date: | 2 July 2015 |
| Date of Last Submission: | 2 July 2015 |
| Delivered at: | Wagga Wagga |
| Delivered on: | 2 July 2015 (oral reasons) 22 July 2015 (written reasons) |
REPRESENTATION
| Solicitors for the Applicant: | Commins Hendriks, Wagga Wagga |
| Counsel for the Respondent: | Mr P Batey |
| Solicitors for the Respondent: | Farrar Gesini Dunn, Canberra |
ORDERS
The matter be transferred to the Family Court of Australia.
IT IS NOTED that publication of this judgment under the pseudonym Elkin & Wearne (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WAGGA WAGGA |
AYC 11 of 2012
| MR ELKIN |
Applicant
And
| MS WEARNE |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons, which were delivered orally in Wagga Wagga on 2nd July 2015, have been revised from the transcript. They should be read in conjunction with separate reasons regarding a costs order made by this Court on 6th March 2015 against the Wife.[1]
[1] See Elkin & Wearne (Costs) [2015] FCCA 1880 (“the costs judgment”).
The order made on 2nd July was simply that the matter be transferred to the Family Court of Australia. While these reasons certainly relate to the transfer order, their primary focus is on the conduct of the Wife’s solicitors leading up to the hearing of the Application, with some comment too on the conduct of the Husband’s solicitors.
Recent History
I need not rehearse the procedural history of the matter other than to note that (a) the Initiating Application, which sought orders in relation to parenting and property, was filed by the Father on 27th July 2012, and (b) the Response to that Application also sought orders in relation to parenting and property. The Response was filed by the Wife on 5th September 2012. At that time, both parties were legally represented. Clearly, the matter has been on foot for some time; the parenting aspect of the matter was resolved a little time ago.
More recently and relevantly to the current transfer application, the following matters should be noted:
(a)on 23rd March 2015, the Wife’s solicitors (Friedlieb Byrne, Wagga Wagga), filed a Notice of Withdrawal as Lawyer;
(b)on 30th April 2015, a solicitor from Leader Law Group in Sutherland, filed a Notice of Address for Service on behalf of the Wife;
(c)on 18th June 2015, Mr Farrar of Farrar Gesini Dunn (Canberra) filed a Notice of Address for Service on behalf of the Wife;
(d)on 26th June 2015, the Wife filed an Application in a Case
On 18th June, the Wife’s new solicitors wrote to my Chambers to advise that they would shortly file a Notice of Address for Service, with effect from that date. The letter noted the following matters:
(a)The solicitors recorded that the matter was listed for directions on 2nd July at 9.15am (the Court scheduled to be on circuit in Wagga Wagga at that time; there were other matters listed on the same date and at the same time for directions);
(b)An Application was foreshadowed which would seek orders, “inter alia”, that the scheduled hearing dates of 22 – 24 July be vacated, and that the matter be transferred to the Family Court of Australia. With the benefit of hindsight, the reference in the letter to “inter alia” is significant, for reasons noted below;
(c)The letter went on to indicate that Counsel from Sydney had been briefed and would travel to Wagga Wagga for the Application;
(d)It was suggested that, if the Application was opposed by the Husband, it may take “some time” in which case they asked if the Court considered that another date and time might be fixed.
A reply was sent on the same day to the Wife’s solicitors confirming that the Application [once filed as foreshadowed] would be heard and dealt with on 2nd July in Wagga Wagga. The Court noted that there was a trial scheduled to commence at 10am on that day and therefore there was limited time available.
Also on 26th June, the Wife’s solicitors wrote to the Registrar, Eastern Region Appeals Registry, Family Court of Australia. In the course of that letter, the solicitors stated (emphasis added):
We advise that his Honour delivered ex tempore reasons on the date the Orders were made. We have not received written reasons from his Honour in support of the order under appeal. Auscript have advised that they are contractually obligated not to provide the transcript of the hearing during which the orders were made. … Our client has not been independently able to obtain a transcript and his Honour has not separately delivered reasons for his Orders….
In the Draft Notice of Appeal, among other grounds of appeal, the following is stated (ground 4) (emphasis added): “The Learned Trial Judge failed to give any reasons in support of Order 8 of the Orders made by his Honour on 4 March 2015.”
In the Wife’s affidavit, filed in her Application in a Case in this Court on 26th June, she stated (par.33) (emphasis added): “I am informed by my solicitor that his Honour did not hand down a written decision but did deliver oral reasons [on 6th March].”
Then at par.36 of the same affidavit, the Wife deposed, inter alia (emphasis added): “… The filing of a Notice of Appeal has been hindered because I have been unable to obtain the transcript for the hearing on 6 March 2015. In addition to that, no written reasons have been issued by his Honour in support of the orders made on that date….”
In the Application in a Case, in addition to the transfer order sought, a further order sought was in the following terms: “… in the event the Court does not make Order 2 above [the transfer to the Family Court], the proceedings henceforth be determined by a Judge other than the Honourable Judge Neville.”
In the course of the hearing on 2nd July in Wagga Wagga, it came to light that mediation between the parties had been conducted by a lawyer who is a director of a law firm that is associated with the Wife’s current lawyers. To this somewhat surprising revelation (judging by his somewhat startled reaction and checking with the Wife, the Wife’s Counsel seemed not to have been apprised of this information), the Husband’s solicitor simply stated that his client “did not have a problem with this.” On “this”, more later in these reasons.
Issues to be Addressed
Because some matters have been addressed in the separate costs judgment,[2] I need only note here summarily certain blatant factual errors before dealing with other substantive issues.
[2] Elkin & Wearne (Costs) [2015] FCCA 1880.
The grounds of appeal plead specifically that I “failed to give any reasons” for the costs order in the Husband’s favour. Yet the Wife swore in her affidavit, filed 26th June, which was prepared by the same solicitors who filed the Draft Notice of Appeal, that oral reasons were given.
It may just be carelessness; it may just be sloppiness (for which the Wife is paying); it may be [simple] negligence. In any event, basic checking of facts was obviously not done. Nor was there proper checking of what was filed with the Appeals Registry, on the one hand, and what the solicitors had their client swear to in her affidavit filed in this Court on 26th June. In passing I note that the affidavit proper runs to an almost meagre 8 or so pages; however, its annexures which are almost exclusively copies of transcripts of various direction hearings, run to more than 100 pages. The not insignificant cost of obtaining the transcripts seems not to have been an issue for the Wife.
Other grounds of appeal refer to costs being awarded by this Court on an indemnity basis; this is plainly false, both on the face of the order and as made plain in the separate “costs judgment.” Not only were costs not made on an indemnity basis; I made the point that the circumstances on which they were sought did not, in my view, satisfy the award of costs on such a basis. Again, whether due to sloppiness, carelessness or worse (and the costs paid for by the Wife to her lawyers for the preparation of such documents), the facts presented to the Family Court are erroneous.
It is also pleaded that there was no “engaging with and applying the applicable legislative provisions … including s.117 of the Act.” This too is false. One of the many transcripts ordered and paid for by the Wife attached to her affidavit, is the transcript of the hearing of the Husband’s application for costs on 4th March. Relevant parts of it is extracted in the “costs judgment” which makes plain that there was significant “engagement” between Counsel and the Bench in relation to the “path” outlined in s.117 of the Family Law Act 1975. Similarly, the costs judgment (i.e. the oral reasons delivered on 6th March and the written reasons later provided – but never requested by the parties) details at some length the principles applicable to the making of an order for costs. The principles set out are both statutory and by reference to relevant case law.
All such matters are, of course, grist for the Full Court’s mill. In my view, however, given that (a) the Wife’s solicitors were not present when the oral reasons were delivered, (b) the Wife was not present when the oral reasons were delivered (only her then solicitors), and (c) neither the Wife nor any of her solicitors – past or present – have ever requested written reasons, (i) the grounds of appeal are factually incorrect, (ii) they have not been checked for accuracy and consistency with the sworn evidence of their client, and (iii) a reasonable inference from the negligent statements in the grounds of appeal and the different statements sworn to by the Wife is that the grounds of appeal have been formulated without sufficient regard to the truth and reality of what was said and done by the parties’ Counsel and the Court on 4th and 6th March. To use the vernacular, it appears that mud has been thrown in the hope that something sticks. I cannot and do not make any comment on the tactical merit or otherwise of the Wife’s solicitors in the light of the above.
In my view, in the light of the matters to which I have referred, the conduct of the Wife’s solicitors has fallen significantly short of what the Court should reasonably expect of practitioners. This is especially so where the solicitors involved are long experienced family law practitioners and hold themselves out as specialists in this field. The Court should be able to rely upon practitioners (be they Counsel or solicitors) to be completely candid and to be accurate in the material put before the Court. Occasional inaccuracies are to be expected; however, blatantly inaccurate statements of such a number and of such a kind are unacceptable.
Further, the regular statement that reasons were not provided and the negative insinuation against the Court that written reasons were not/never provided when both statements are false, reflects very poorly on the solicitors. They are sufficiently well experienced to know that written reasons will always be provided – when requested. That request has never been made. To imply that the Court has somehow been complicit or negligent in the [lack of] provision of reasons and more so to represent such to the Appeals Registry in my view, is improper, as well as factually incorrect. It should not have occurred.
A particular matter of concern not previously discussed relates to the letter sent by the Wife’s solicitors to Chambers dated 18th June which gave notice of an application to vacate trial dates and to have the matter transferred to the Family Court.
Nowhere in that letter is there any indication that a further part of the foreshadowed Application would be for my recusal. Given that the solicitors had rightly given notice of an application and that it may take some time if opposed by the Husband, it was incumbent on them also to advise or to give notice of the recusal application. Not to have done so, in my view, was a serious omission. The only logical inference is that it was calculated to keep the Court and the Husband “in the dark”, so to speak, at least until the Application itself was filed. This inference is given particular weight because of the reference in the solicitor’s letter of 18th June to orders sought, “inter alia”.
Given that the solicitors were patently aware of the Court being on circuit and the pressure of time on the Court’s always stretched public resources, it was essential that all relevant information was provided at the earliest possible time. Clearly it was not. It should have been notified to the Court in the letter from the solicitors to the Court on 18th June. The failure to refer to that part of the application and so close to the trial dates was misleading. At the hearing on 2nd July, Counsel for the Wife opened his submissions with his primary focus on the recusal application. This would suggest that such was, therefore, the primary focus of the Wife based on the advice from her solicitors, or at least as important to the Wife as the transfer application.
The duties of lawyers (Counsel and solicitors) to the Court are well known. It is sufficient to note the following in this regard.
Duties to the Court
In In re Davis, Dixon J said: “… the duties and privileges of advocacy are such that for their proper exercise and effective performance, counsel must command the personal confidence, not only of lay and professional clients, but of other members of the Bar and of judges.”[3] I stress that the basic principle put forward by Dixon J applies in my view, equally to solicitors who appear as advocates before the Court as they do to Counsel.
[3] (1947) 75 CLR 409 at p.420
In Ziems v The Prothonotary of the Supreme Court of NSW, Kitto J said: [4]
… a barrister is more than his client’s confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations.
[4] Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at p.298.
After citing Ziems’ case, the NSW Court of Appeal stated the following (emphasis added): [5]
Frankness should be one of the attributes of a barrister. It is his duty not to keep back from the court any information which ought to be before it, and he must in no way mislead the court by stating facts which are untrue, or mislead the judge as to the true facts, or knowingly permit a client to attempt to deceive the court.
[5] Re Gruzman; Ex parte The Prothontary (1968) 70 SR (NSW) 316 at p.323.
A typically expansive outline of the importance of lawyers’ candour is in Kirby P’s judgment in NSW Bar Association v Thomas [No. 2], where his Honour said: “Once admitted, the additional duties of invariable candour as well as honesty to a court prevail.”[6]
[6] (1989) 18 NSWLR 193 at p.204.
Of course, proper caution needs to be taken to ensure that no adverse professional finding is made without proper grounds.[7]
[7] In this regard, see the caution noted by Fullager J in Ziems at CLR p.296.
Finally, the often referred to comments by Lord Reid in Rondel v Worsley bear repeating (emphasis added):[8]
Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case. But as an officer of the court concerned in the administration of justice, he has an overriding duty to the court…. Counsel must not mislead the court ... he must not withhold authorities or documents which may well tell against his client but which the law or the standards of his profession require him to produce.
[8] Rondel v Worsley [1969] 1 AC 191 at p.227.
His Lordship’s comments and those to which I have earlier referred, in my view, apply equally to all lawyers (whatever their formal designation) who appear before the Court.
As observed in standard texts on professional responsibility, the following further principles should be noted.[9]
[9] Generally, see G. Dal Pont, Lawyers Professional Responsibility (Fifth Edition) (Sydney: Lawbook Co, Thomson Reuters, 2012).
The proper administration of justice requires that courts (and tribunals) be able to rely on what a lawyer says and does.[10]
[10] Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at p.445 (Mahoney JA).
The House of Lords has held a solicitor to be guilty of professional misconduct for “preparing and putting on the file affidavits of documents which he knew to be very inadequate.”[11]
[11] Myers v Elman [1940] AC 282 at pp.300-301 (Viscount Maugham). Lord Russell agreed (at p.307) with Viscount Maugham on this point. In the same case, Lord Atkin said (at p.302: emphasis added): “If the Court is deceived or the litigant is improperly delayed or put to unnecessary expense, the solicitor on the record will be held responsible ….”
To allow a client to swear an affidavit knowing it contained false information has been held to be professional misconduct. So too is knowingly making false allegations of fact in a pleading.[12]
[12] Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 at p.60 (Ipp J, sitting as a member of the Court of Appeal of the Supreme Court of Western Australia). See also the comments of Parker J in the same case, at WAR pp.72-73, Ipp and Steytler JJ agreeing. Although his Honour’s comments are directed primarily to the action of Counsel, in my view, they apply equally to all advocates.
Law Council of Australia: Model Rules of Professional Conduct and Practice
In large measure these Rules which were issued in March 2002, codify and summarise the principles outlined already from the general law. The part of these Rules most immediately relevant is Part 14, entitled “Frankness in court.” Rule 14.1 states that a “practitioner must not knowingly make a misleading statement to a court.” Rule 14.2 states: “A practitioner must take all necessary steps to correct any misleading statement made by the practitioner to a court as soon as possible after the practitioner becomes aware that the statement was misleading.”
More generally, the preamble to the section “Advocacy and Litigation Rules” states (emphasis added):
Practitioners, in all their dealings with the courts, whether those dealings involve the obtaining and presentation of evidence, the preparation and filing of documents, instructing an advocate or appearing as an advocate, should act with competence, honesty and candour. Practitioners should be frank in their responses and disclosures to the court …
Rule 13 deals with the essential duty of practitioners to bring an independent mind to proceedings and to exercise what the Rules describe as “forensic judgment” during the case.
These Rules from the Law Council of Australia are complemented by the “Best practice guidelines for lawyers doing family law work”, Second Edition 2010, issued by the Family Law Council and the Family Law Section of the Law Council of Australia.[13] Similarly, the Law Council of Australia’s Australian Solicitors’ Conduct Rules 2011, also speak of the strict duty of frankness to the Court (Rule 19).
[13] See, for example, Part 1 (Best practice: conduct and communication), section 12 (regarding duties to the Court).
Further Consideration & Disposition
In my view, the failure to inform the Court in the letter of 18th June of the intention to conduct a recusal application (in addition to those actually referred to) was a clear omission by the Wife’s solicitors of important information that should have been provided to the Court (and to the Husband’s solicitors). Had it occurred, it is more likely than not that a different date and time would have been allocated to deal with all aspects of the Application. Considerations relating to the proper and efficient use of public resources have been clearly articulated by the High Court, and on more than one occasion.
For example, in the almost infamous AON Risk Services Australia Ltd v ANU, French CJ said, for example, at [5], [23] and [24] (internal citations omitted, emphasis added):[14]
[5] … the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account.
[23] The Judicature Act Rules and their Australian offspring did not in terms make reference to the public interest in the expeditious dispatch of the business of the courts. The way in which proceedings progress has been left to the parties. This may be seen as an aspect of the adversarial system which is a dominant part of the common law inheritance of Judicature Act procedure. In this respect, however, the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.
[24] … Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation…
[14] See AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. In addition to the comments of French CJ cited, see also the general observations of Gummow, Hayne, Crennan, Kiefel and Bell JJ at [112] – [113].
Clearly, in the current matter there has been a “late and deliberate tactical change by one party in the direction of the litigation.”
In this regard and in addition to the transfer Application, the solicitor for the Husband confirmed that he only learnt of the recusal application when he was served with the Application. No prior notice had been given to him (or his client) about it.
More recently still, in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Limited, the High Court commented further, by reference to the earlier comments in AON Risk Services v ANU. At [51], [56] and [57], the Court (French CJ, Kiefel, Bell, Gageler & Keane JJ) said (emphasis added):[15]
[51] … It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants...
[56] … Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose…
[57] That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance.
[15] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Limited (2013) 250 CLR 303.
“Speed and efficiency” are not the hallmarks of the current litigation.
In my view, in the light of the principles to which I have referred, it is proper and reasonable to find that the Wife’s solicitors were negligent by omission in failing to inform the Court in the letter of 18th June that the foreshadowed Application included an order for recusal. Such was a breach of the Wife’s solicitors’ duty of frankness to the Court. The factually erroneous material set out in the Draft Notice of Appeal and the other documents to which I have referred put before the Full Court is a matter for that Court.
There is one further matter that should be addressed. I have earlier noted that the parties attended mediation which was conducted by a lawyer who is a director of a firm that is associated with the Wife’s current solicitors. When this came to light at the hearing on 2nd July, the Husband’s solicitor said words to the effect of “my client does not have any difficulty with that [being the association between the mediator and the Wife’s solicitors].”
Respectfully, this was not an appropriate response. It is not to the point that the client does or does not have any issue with any risk of prejudice or conflict of interest, even if only perceived. The issue, in my view, is (a) whether the Husband was properly advised by his solicitor in relation to the potential risks of not raising the position of the mediator vis-à-vis the Wife’s current solicitors and in particular (b) whether the solicitor sought advice on this particular issue from the very experienced Counsel he has briefed. For my part, I would be astonished if Mr Levy (of Counsel) was as sanguine as the Husband’s solicitor appeared to be about such a close association. The solicitor’s apparent lack of concern about the association between the Wife’s solicitors and the mediator may simply be a function of that solicitor’s relatively modest experience as a practitioner and or perhaps the certitude that younger practitioners often naturally bring to practice, yet to be tempered by the cauldron or winds of experience.
It also seems to have been the case that the Husband’s solicitor did not (or had not) taken into account (a) the seniority of Counsel who was being flown from Sydney to Wagga Wagga, and (b) the litigious reputation and modus operandi of the Wife’s new solicitors.[16]
[16] I stress that none of my comments are directed to Counsel.
In a worst case scenario, if something arose during the trial that related to the mediation and it impacted adversely on the Husband (or the Wife for that matter), I wonder how relaxed and comfortable the Husband’s solicitor would then be. By that time, the Husband would have waived his right to raise any concern about the Wife’s current solicitors remaining on the record.
For my part had the matter remained in my docket, there is a very high likelihood that even on the Court’s own motion (and subject to evidence and submissions), I would likely have disqualified the Wife’s solicitors from continuing to act. Justice must not only be done, but appear to be done. Such a point has been made often enough in family law litigation in particular.[17] Any scent of conflict in my view, should properly be explored and determined.[18] Thus far, it would certainly appear to be the case that proper advice has not been sought least of all from the Husband’s Counsel. What a “reasonable observer aware of all the relevant facts would think that there is a real, as opposed to a theoretical possibility that confidential information … might be used … to the detriment of [the Husband]” is formally a matter to be determined, if necessary.[19]
[17] See, for example, Thevenaz v Thevenaz (1986) FLC ¶91-748 at p.75,447 (Frederico J), and Magro v Magro (1989) FLC ¶92-005 at p.77,187 (Rourke J).
[18] Generally, see the regularly cited decision of Brereton J in Kallinicos v Hunt (2005) 64 NSWLR 561, and Naczek & Dowler [2011] FamCAFC 179.
[19] The principle is from Carindale Country Club Estate Pty Ltd v Astill (1993) 115 ALR 112 at p.118 (Drummond J).
To return to the transfer Application, I accept (albeit with some reluctance) the Wife’s submission that the matter is now likely to take more than four days (notwithstanding that her previous Counsel – presumably on the Wife’s instructions - had agreed that three days would be sufficient to deal with the matter). In such circumstances, I acceded to the transfer Application. This was so notwithstanding that the Wife had earlier agreed to the matter being heard over two days (in March 2015), and then had also agreed (in March 2015) that the matter could/would be concluded in three days in July 2015 (with those dates being fixed with the agreement of both sides). Certainty in litigation, as well as timely and proper use of Court resources is essential – as the High Court has noted. Such considerations in certain respects in the current matter seem not to assume much priority.
Although it was not argued in any relevant respect, it is important very briefly to note that the only ground for the recusal application was said to be due to the Court sending an email to the Wife’s former solicitors to inquire about details of one business venture of the Wife. The Wife’s affidavit (filed 26th June 2015, pars.46 & 47) takes not insignificant umbrage to this email, protesting that she was aware of her obligations of disclosure. The email from Chambers was sent to the Wife’s [then] solicitors on 17th March. Relevantly, it stated:
… HH could not immediately recall if this enterprise [(business omitted)] was/is referred to in the financial records of the Wife, and if not, what its business is. HH assumes (but does not know) that it is somehow related to (business omitted), which business is set out in the material before the Court.
If this business is not detailed (financial or otherwise) in the Wife’s material, HH would appreciate to see all relevant detail, which presumably would include evidence from the (employees omitted) of the (business omitted) about the business, clientele, financial arrangements and the like.
The Wife’s former solicitors withdrew from the matter in late March. Her current lawyers came on to the record in mid-June. Neither the lawyers who acted for the Wife in between, nor her original lawyers, nor the Wife herself, took any action in relation to the email prior to the filing of the Application in late June.
Very curiously, especially given the Wife’s clearly expressed, albeit belatedly, disquiet at the email about [allegedly] the Court impugning her knowledge of the requirement to disclose assets fully and frankly, in her affidavit, at pars.563 and 565, she set out a summary of the asset pool. Nowhere is there a reference to the business enterprise about which the Court inquired – namely (business omitted).[20]
[20] Should it be relevant, the Court’s “information” about the business, (business omitted), came simply from a stroll through an arcade opposite the Court in Wagga Wagga. This arcade contains a number of restaurants and cafes, some of which are conducted by the Wife. Outside one of these businesses conducted by the Wife is a sign advertising “(business omitted).” This information was generally referred to in the email from Chambers to the Wife’s then solicitors.
The standard test or principle in apprehended bias - recusal applications 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.” And further, the High Court has emphasised more than once, that "[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective.”[21]
[21] Generally, see the comments by the High Court summarising principle in such applications in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 relevantly at [31] and [32].
Leaving aside questions of delay on the Wife’s part in raising her “concern” about the Court daring to ask a clarifying question in the light of the objective test to which I have referred, in my view, properly construed, which is to say according to the reasonably well informed bystander, the email simply seeks information. It is more than a little curious that such an inquiry would spark a recusal application. Certainly, given the robust exchanges recorded in prominent cases that deal with such applications, respectfully, the basis for such an application at its highest, in my view was gossamer thin. It bespeaks more tactical motives. This “perception” is given greater substance or credence because of the quite remarkable fact that the Wife does not refer to the very business the Court inquired about in the summary list of assets she set out in her affidavit; this omission in her affidavit only adds to the perception that it is a confected umbrage or outrage. “The lady doth protest too much, methinks.” (Hamlet: Act 3, Sc.2)
However, without having heard the matter in any relevant respect (keen though Counsel was to run it), it is not apposite to say more other than, inter alia (to use an expression favoured by the Wife’s solicitors) it did seem to be an exercise in litigious game-playing. I would fear (if not expect) that had the transfer not been granted and had I not recused myself, an appeal would almost certainly have been lodged, almost certainly having the consequence of thwarting the three days set aside for a final hearing – to which the Wife had previously agreed.
There is a final observation: with the two days that were allocated in March for final hearing and the further three days in late July that were allocated for the final hearing and which had been agreed between the parties’ lawyers, the matter would likely have been heard and concluded by the end of this month. As to when and how the matter will be heard in the Family Court is, of course, a matter for that Court. Most unfortunately, the way the matter is now shaping up to be conducted, not to mention the Application in an Appeal regarding costs (which will doubtless end up costing almost as much as the costs order if not significantly more, particularly if it is unsuccessful), it might quickly become and warrant a description used by the High Court (in a different context), namely “lamentable and ill-starred litigation.”[22] Such a description, of course could readily be applied to much family law litigation. One hopes that such a description in this matter proves unfounded or unwarranted.
[22] See Byrnes v Kendle (2011) 243 CLR 253 at p.281 [90] (Heydon & Crennan JJ).
In summary, in my view:
(a)The Wife’s solicitors misled the Court by the omission of relevant information from the letter to the Court dated 18th June 2015. This was raised with Counsel for the Wife at the hearing in Wagga Wagga on 2nd July 2015; as earlier noted, he suggested that this inquiry lay elsewhere. It should have referred specifically to the recusal application rather than obliquely referring to “inter alia” as a catch-all for other possible but unspecified applications. It did not. It was a material omission.
(b)The Wife’s solicitors were negligent in that they caused to be filed in this Court an affidavit sworn by the Wife that was factually different to material that has been filed with the Full Court. The significant range of claims made in the material filed in the Full Court is factually erroneous, and patently so. In consequence, the material filed is misleading; it has not been corrected. These factual problems too were raised with Counsel for the Wife during the hearing in Wagga Wagga on 2nd July. As with the first matter (the omission of information), Counsel parried the questions from the Bench (he having only recently been briefed) and suggested that inquiries of the kind raised by the Court might be best directed to others. Reasonable checking (for example, with the Wife’s original lawyers) would have established the range of errors, inaccuracies, and inconsistencies clear on the face of the documents. Equally, basic cross-checking of the documents filed in both Courts (preferably proper checking is done before the documents are filed) by the same lawyers, would/should have revealed the clear inconsistencies between them as well as the range of factually inaccurate claims. This did not occur. I leave the matter at the level of negligence deliberately. In the absence of a proper ventilation of these matters and consideration of evidence, it would not be proper to suggest (which I do not) that there was any intent by the Wife or her current lawyers to mislead the two Courts in the factual matters disparately and differently put in the Full Court and this Court.
(c)The recusal application was based on an email from the Court to the Wife’s original lawyers inquiring about information regarding a business enterprise known as (business omitted). In her affidavit filed by her current lawyers the Wife deposed, in quite strong terms, about her knowledge of her duty to disclose properly all relevant assets and business interests. She deposed further that because of the email from the Court she was concerned that the Court had formed an adverse view about the state of her disclosure. Yet in the summary of assets and liabilities set out in her own voluminous trial affidavit (noted earlier), she made no mention of this particular business entity – hence the Court’s inquiry to her former solicitors. Neither her original solicitors nor her second retained lawyers nor the Wife herself protested about the inquiry from the Court. This only occurred some three months or so after the email was sent when her most recent solicitors filed her Application in this Court at the end of June. Further, in her letter to the Husband’s solicitors dated 22 December 2014, (Exhibit C) there is also no mention of this business known as (business omitted). The recusal application, even on the Wife’s own [lack of] evidence was without foundation. It was without merit and should not have been made. It suggested that it was more an exercise of litigious “game-playing.”
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 22 July 2015
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