Ettridge and Somers (No 4)

[2019] FamCA 577

FAMILY COURT OF AUSTRALIA

ETTRIDGE & SOMERS (NO. 4) [2019] FamCA 577

FAMILY LAW – COURTS AND JUDGES – oral application for recusal made by the respondent – application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488

APPLICANT: Ms Ettridge

RESPONDENT: Mr Somers

FILE NUMBER: MLC 11262 of 2015

DATE DELIVERED: 17 July 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 17 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Paterson

SOLICITOR FOR THE APPLICANT: Carew Counsel Pty Ltd

THE RESPONDENT: In Person

Orders

1. The applicant, Mr Somers do all such acts and things as may be required to permit the valuer, Mr MM of the NN Group, or such other valuer as nominated by that firm, access to the property at B Street, Suburb C at 11.30 am on Monday 22 July 2019 for the purpose of valuing the said property. 

2. All extant applications be adjourned to 4.00 pm on 22 July 2019. 

3. The respondent’s oral application that I recuse myself from further hearing this matter is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ettridge & Somers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11262 of 2015

Ms Ettridge

Applicant

And

Mr Somers

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today in relation to two issues.  Firstly, an application made on behalf of the respondent, Mr Somers, seeking a stay of the operation of orders made by me on 18 June 2019. The respondent is also seeking a stay of the operation of orders made by Cronin J and Thornton J earlier in the proceedings. 

2. There is also an Application in a Case filed on behalf of the applicant, Ms Ettridge, in which she seeks to enforce orders made by Cronin J and in particular seeks the issue of a warrant for vacant position of B Street, Suburb C, Victoria (“the Suburb C Property”).

3. However, before I can address those matters, it is evident from the affidavit material filed by the respondent, and particularly from his affidavit filed 25 June 2019, that he takes issue with the matter proceeding before me. 

4. Although there is no formal application contained in his Application in a Case that I recuse myself, when one considers paragraph 26 of his affidavit it is clear that the issue of the hearing proceeding before me is a matter which he seeks to ventilate.  At paragraph 26 of that affidavit the respondent states:-

   I asked the learned Judge Johns J recuse herself from hearing this application on the basis that her honour has demonstrated impartiality, inadvertently or otherwise, and consistently misled a self - represented person in proceedings before her on 7 September 2018 and again on 18 June 2019.  This will be found in the transcripts of both hearings. 

   Further, at paragraph 33 of the same affidavit, the respondent deposes as follows:-

   Before Johns J on 18 June where I was forced to read more what is in fact perjury authored by the applicant which makes it difficult for me to remain focused as a self represented party, I asked Johns J to please apply Rule 9.08 of the Family Law Rules 2004, noting that the Applicant’s Affidavit was not served until late in the day on 17 June 2019 [sic]. Johns J declined to do so, continued to chastise the self represented respondent for not being able to process the applicants late affidavit in a short space of time. I am self represented only due to the removal of funds by the applicant and necessarily on a very steep legal learning curve to combat the significant miscarriage of justice in these proceedings.

5. As a result of those two paragraphs, at the commencement of submissions I sought clarification from the respondent as to whether or not he sought to press his application that I recuse myself.  The respondent confirmed that he did seek leave to make oral application for that order.  There was no opposition from the applicant to leave being granted for him to make such oral application. 

6. The submissions of the respondent in support of that application were largely unhelpful to the Court.  I sought to direct the respondent’s attention to the issue that he wished to ventilate. I invited him to address me as to the conduct or comments made by me in the course of hearing which would lead a fair observer to consider that I have dealt with the matter in a manner which would give rise to concern as to not bringing an impartial or unprejudiced mind to the determination of issues before the Court. 

7. The respondent raises complaint as to the manner in which I conducted a mention hearing in these proceedings on 7 September 2018.  He asserts that I made aggressive comments to him during the course of those proceedings.  However the respondent could provide no particulars as to what it was that was said to him that would support that contention.

8. I drew the respondent’s attention to the orders made on 7 September 2018 and also to the ex tempore reasons for judgment that I delivered that day.  The respondent made no submissions in relation to either the orders made or those reasons for judgment. 

9. The respondent was then invited to make submissions as to what facts or matters from the hearing before me on 18 June 2019 would give rise to the need for me to recuse myself.  Other than making a general submission complaining about my conduct, the respondent provided no particulars of matters which would support an application for me to recuse myself. 

10. As to the matters referred to in the respondent’s affidavit regarding a failure to provide him with an opportunity to consider the late affidavit material filed on behalf of the applicant, I note that the reasons for judgment delivered by me in respect of the hearing on 18 June 2018 records that the proceedings were stood down for more than an hour to enable the respondent to read and consider those documents.  There was no application made by the respondent that day for an adjournment of the proceedings. 

11. In my view, it is also noteworthy that at the time of the hearing before me on 18 June 2018 there was no issue raised by the respondent as to my conduct in relation to earlier hearings conducted before me. In particular there was no complaint or criticism, or indeed any application for me to recuse myself on that occasion as a result of the manner in which I conducted the hearing on 7 September 2018. 

12. The principles in relation to an application for a judge to recuse themselves is set out in the decision of Johnson & Johnson (2000) 201 CLR 488, particularly at paragraphs 11 to 13, inclusive. Paragraph 11 provides as follows:

    …It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

    (Citations omitted)

    Those principles were cited with approval in the decision of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

13. The submissions of the respondent in my mind do not satisfy me that there is any basis upon which it could be said that I have not brought an impartial mind to my consideration of the issues in this case.  Further, it could not be said, in my view, based on the submissions made today, that I have not brought an unprejudiced mind to the resolution of the disputes before the Court. 

14. The sweeping allegations made by the respondent as to unfairness by the Court do not withstand scrutiny.  There is no particularity provided by the respondent as to what it is I have said or done that would give rise to a suggestion that I have not brought an impartial or unprejudiced mind to the determination of the dispute.  That being the case, the application of the respondent that I recuse myself is dismissed. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 17 July 2019.

Associate: 

Date:  17 July 2019