FAZARRI & HSIAO
[2018] FamCA 446
•19 June 2018
FAMILY COURT OF AUSTRALIA
| FAZARRI & HSIAO | [2018] FamCA 446 |
| RECUSAL – where the wife asserts conflict of interest because judge’s associate has same name as husband’s former wife and contemplates there is a connection – where the wife asserts apprehended bias based on issues of discussion with various counsel – application for recusal rejected. ADJOURNMENT – where wife seeks adjournment maintaining husband has not complied with discovery obligations – application refused. |
| Family Law Act 1975 (Cth) |
| AON Risk Services Australia Limited v Australian National University [2009] HCA 27 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Re JRL; ex parte CJL (1986) 161 CLR 342 Johnson v Johnson (2000) 201 CLR 488 Strahan & Strahan (Disqualification) (2009) FLC 93-414 |
| APPLICANT: | Mr Fazarri |
| RESPONDENT: | Ms Hsiao |
| FILE NUMBER: | MLC | 11418 | of | 2016 |
| DATE DELIVERED: | 19 June 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 14 June 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr North SC with Mr Schmidt |
| SOLICITOR FOR THE APPLICANT: | Taussig Cherrie Fildes |
| THE RESPONDENT: | In Person |
Orders
That the applicant husband have leave to rely upon five affidavits as to valuations relating to property matters.
That the respondent wife’s application for an adjournment is refused.
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 Fazarri & Hsiao 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 11418 of 2016
| Mr Fazarri |
Applicant
And
| Ms Hsiao |
Respondent
REASONS FOR JUDGMENT
These are my reasons relating to three rulings made on 14 June 2018 in proceedings between Mr Fazarri (the husband) and Ms Hsiao (the wife).
The hearing on 14 June 2018 was to have been the first day of a final hearing between the husband and wife concerning property and spousal maintenance issues arising from their marriage. At the hearing, Mr North SC and Mr Schmidt appeared for the husband and the wife represented herself. She had been represented by solicitors until 7 June when a notice was filed that the solicitors were ceasing to act for her. Counsel on behalf of the solicitors attended the hearing to formally ask to be permitted to withdraw. On the day before the hearing was to begin, the wife filed an application in a case supported by a number of affidavits. It is that application that I am dealing with here.
These reasons therefore deal with:
(a)The wife’s assertion that there was a “conflict of interest” because my associate was said by her to be related to the husband’s former wife;
(b)The wife’s application that I recuse myself from hearing any of her matters on the basis of apprehended bias; and
(c)Her application for an adjournment of the trial regardless of the other two matters because the husband had not provided adequate discovery (she wanted to pursue that along with litigation funding and spousal maintenance).
The husband raised an issue as well. He sought permission to rely upon affidavit material from valuers who had only recently been instructed to value the various real properties of the husband.
The husband opposed the adjournment application and the recusal application was not a matter upon which I called his counsel to respond as I considered that each matter was a matter for the Court.
The wife opposed the husband’s application to rely upon the valuation evidence.
There were other issues raised by the wife including:
(a)The removal of a stay order to permit her to pursue interim orders for spousal maintenance; and
(b)Her request that the husband file an updated financial statement.
Much of the lengthy submissions revolved around the question of the wife’s insistence that the husband had not provided discovery and, should she be successful on the matters mentioned above, she wanted orders relating to that.
As all matters follow the determination of the recusal application, and to some extent, the conflict of interest point, it is appropriate that I determine those first.
Conflict of interest
The husband had previously been married to Ms B (the former wife) and, after commencing a relationship with the wife, he settled a property dispute with his former wife. The nub of the present conflict of interest argument stems from the fact that the husband and the former wife have an interest in a discretionary family trust. Although it was dismissed as unreliable (although I am unsure why), the husband produced what he said was a copy of the stamped trust deed which shows that the trust was settled in 1996. That document has been tendered in evidence by the husband for a purpose to which I come below.
My associate is Ms C. She has held that position for over a decade. It is unclear how Ms C’s employment position gives rise to a conflict of interest but in any event, it is important to understand the argument raised by the wife.
After reading my judgment handed down in March 2018, the wife saw the similarity of names between my associate and the former wife. It is the responsibility of judges’ associates to certify judgments are what they purport to be. At the time this issue attracted the wife’s attention, she was represented by solicitors.
In evidence, and tendered by the wife, is a copy of a letter written by the solicitors for the wife to the person within the courts who is responsible for the management of staff. This letter was said by the wife (and the solicitors) to have been written to the administrative officer responsible for staff and that advice came from the Federal Court’s Human Resources Section. The assertion made by the solicitors was that my associate was “related” to the former wife and an investigation into my associate’s conduct specifically in respect of the proceeding between the husband and the wife was warranted.
The letter is dated 4 June 2018. Some of its details will suffice to enable an understanding of the concerns of the wife. It said that:
·“a highly sensitive staff situation has arisen affecting the case of a disputed estimated $20 million property settlement”;
·“Justice Cronin’s Associate, [Ms C] is related to [Mr Fazarri] ….by his prior marriage to [Ms B]”;
·“[Ms C] is relative (sic) of [Dr D], [Ms B’s] father”;
·“There is a conflict of interest with [Ms C] being Associate to Justice Cronin, the trial judge in this matter”;
·“According to a letter from (the husband’s solicitors) dated, 27 March 2018, [Ms C], as a member of the …family is a direct beneficiary of the [Fazarri] Family Trust”;
·“It is clear from transcripts and orders of 26 April 2018, that [Ms C] manages correspondence, court dates, documents and the administration of orders by Justice Cronin”.
What then followed in the letter by reference to “incidents” was a series of matters only some of which I intend to mention. Incident number 2 refers to the “deletion” of an affidavit of the wife filed 17 January 2018 from the Court’s system. The letter said that this “almost 250-page affidavit” was removed from “her physical file” and that it “disappeared”. The letter then referred to “notes were later added to the system, however, the original affidavit remains lost”. It then said the annexures of the affidavit resulted in “[Ms C] removing the affidavit from the file”.
In what was described as “Incident 3”, the letter said that “[Ms C] is responsible for” the typing of the judgment or judgments generally.
Under the heading of “other incidents” the letter said that transcripts “suggest” that I, as the presiding judge, had “prior knowledge of letters of mis-communication, offers of settlement, correspondence and arguments between the parties”.
Mr F is the solicitor who signed the letter.
I begin by indicating that the assertions in dot points 2, 3 and 5 above are wrong. The issue of Ms C was brought to the attention of the solicitors for the husband by the wife’s solicitors. The husband not only denied the association but drew to the wife’s solicitor’s attention that because of the family structure, the assertion could not be correct.
The surname “[C]” of my associate is her married name, a marriage that she had told me when she first worked for me, had ended many decades ago. The assertion of any connection with Ms B is wrong.
I informed the wife of that inaccuracy in the course of her submissions and on two occasions offered her an opportunity to cross-examine Ms C who was then working in my chambers. On each occasion, the wife declined the opportunity.
Unlike many judges’ associates, Ms C has never sat in the courtroom during a sitting in my tenure as a judge. That becomes relevant on the matter of the access to the court file.
The fifth dot point is also wrong because, as I understand the position articulated by senior counsel for the husband, there has never has been any suggestion from the husband that my associate has anything to do with him. The assertion made by the solicitor for the wife must have come from some conclusion he had drawn based on the similarity of surnames. I note that no evidence was produced from Ms B nor would it seem any inquiry was made of her as to the accuracy of the wife’s concerns.
I pressed the wife for further submissions as to the response of the husband and she said that during her marriage, the husband had told her that his former wife had some connection with a judge. I remain unsure whether she was referring to an associate of a judge or the judge. None of this was in any evidence either.
I turn then to the other assertions in the letter and in particular, the reference to the large affidavit said to have disappeared and to “notes” said to have been “added” to the system.
On the return date of the wife’s application to which the affidavit was said to be relevant, I objected to its form not based on the rules about annexures which commenced later in 2018 but to its size. Having regard to its size which such as to require it to be bound by a plastic cover and binding, it should not have been filed nor accepted for filing. My objection is well known to experienced practitioners and on that occasion, the wife was so represented. The “notes” to which the wife’s solicitor referred were indeed added to the court’s computer system but by my court officer to whom I had given the direction that the document was to be returned to counsel. They were not added by my associate. Those notes are made to ensure that although the court computer may show the filing, the annexures would have been missing. However, as the annexures could not easily be separated (as I would normally have personally done on the bench), the notes show that my court officer returned the whole affidavit to counsel requesting that that exercise be undertaken and the narrative filed. The record shows it never was filed thereafter.
The statement in the solicitor’s letter about Ms C removing the affidavit from the file is not only incorrect but scurrilous. That assertion alone gave rise to my indication that, as Ms C was the subject of open court discussion in which accusations were made against her, she should have a copy of the letter upon which to seek her own advice. I have dealt with that by an order for its release. In my view, she is entitled to treat the scurrilous accusation as any citizen would who considered themselves defamed.
Having raised the subject of the letter having been published, the wife queried whether I was referring to s 121 of the Family Law Act 1975 (Cth) (“the Act”) when I used the word “publication”. As I told her at the time, I was not. I was referring to the fact that my thought was that her solicitor had published the defamatory remarks. It also concerned me that the wife’s solicitor, as an officer of the court, had taken this course rather than raising the concerns in open court before me. Had he done so, much embarrassment and time wasting could have been avoided. As the solicitor has not had an opportunity to be heard on what should be said and done about that, I make no other remarks about his role.
The wife may wish to take up with her counsel who appeared for her at the hearing about the disappearing affidavit but had a proper inquiry been made, my court officer would have readily explained from her own notes where the affidavit went.
In relation to “Incident 3”, again, an assumption has been drawn. The wife made reference to my judgments being typed by Ms C. As I advised her in response, to the extent that she thought that Ms C was the only one who undertook that task, she was wrong. Indeed, this very judgment is being typed by me and that is not uncommon.
In relation to the management of files, had proper inquiry been made, the solicitor would have ascertained that files are retained in a central storage location. When a hearing is pending, the file is produced by the administration. The only role of my associate, and more often than not, a task undertaken by my legal associate, is to extract the documents to which the parties’ direct attention. They are extracted from the file and placed in specific folders for me to read. No correspondence is provided in those folders save for the emails attached to the relevant outlines of cases to indicate to me when they are filed. In respect of interlocutory matters, only the application and supporting affidavit is extracted. In a trial, the documents that the parties request in writing in their outlines are extracted.
It is rare that the formal file is in my possession and only in the possession of Ms C whilst she is preparing orders or judgments.
I stress these operational points because of the solicitor’s assertion that there is a suggestion that I would have “prior knowledge of letters of mis-communication, offers of settlement, correspondence and arguments between the parties”. Coming from the hand of a legal practitioner, the vagueness of this is offensive. I do not understand how it is possible for the court to know of “offers of settlement”. I do not understand (and have expressly objected to) legal practitioners copying in judges’ associates into correspondence between legal practitioners. I do not understand what the solicitor meant by “mis-communication”. If he sent the letter to my associate incorrectly, no doubt she would have quickly corrected him. But to suggest that as a result of her knowledge of these matters, Ms C would tell me anything that would compromise my position is demeaning to her. She has had over 20 years experience with senior judges of the Court. I might understand if the letter was written by a litigant without formal legal training and having little understanding how the court system operates but this was signed by the solicitor.
Finally, the wife’s affidavit which she said she drew herself, referred to an internal and an external investigation. She did not elaborate on what that meant but I propose to ignore it. The investigation came to my attention when the wife raised the letter and her affidavit was read. It is another reason why my associate should have a copy of the letter so that she can obtain legal advice.
I have not addressed the issue of the legal issues that might arise out of an assertion of conflict of interest and I do not consider it is necessary for me to do so. It seems to me that this is better considered under the hearing of apprehended bias but having regard to the assertions in the solicitor’s letter, it may be that it is actual bias. However, when I raised the issue with the wife, she said she was referring to conflict of interest and apprehended bias.
I find there is no conflict of interest.
The recusal application
Although the application of the wife for my recusal seemed to be based on those matters mentioned and her affidavit was largely confined to those matters, I inquired what other matters, if any, she desired to rely upon. She made submissions drawn from various transcripts of all hearings in which I had been the presiding judge. The extent to which she had gone indicates that she had put a lot of effort into this. The wife is an educated and intelligent woman who was more than capable of arguing her case. She was well-prepared and when challenged about where her submissions were supported by the transcript, she was able to draw my attention to those details.
At each hearing, the wife has been represented by counsel. Having had the transcripts brought to my attention, she was represented by Messrs Mellas and Wilson, and Dr Ingleby all of counsel. It is important to observe that at no hearing has there been any suggestion by counsel of concern about apprehended bias. In each hearing, the wife has also been represented on the court record by a solicitor. At no stage has that solicitor raised in written form any similar suggestion. Significantly, at no time has the wife filed any such application until after her solicitors ceased to act for her.
Whilst those matters are not fatal, they indicate that at least counsel and solicitor did not see anything that had taken place within the hearings as a problem of pre-judgment.
A reading of the transcript as drawn to my attention by the wife will show robust discussion between bench and bar designed to assess the needs of the matter (and that is particularly relevant in this case because of the wife’s complaints about discovery) and what available time the court needed to set aside to quell the controversy.
This management concept is not novel as the Family Law Rules 2004 will show. They provide:
1.04The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
Note: Section 43 of the Act sets out the principles that the court must apply when exercising its jurisdiction under the Act.
…
1.06The court must apply these Rules to promote the main purpose, and actively manage each case by:
(a)encouraging and helping parties to consider and use a dispute resolution method rather than having the case resolved by trial;
(b)having regard to unresolved risks or other concerns about the welfare of child involved;
(c)identifying the issues in dispute early in the case and separating and disposing of any issues that do not need full investigation and trial;
(d)at an early stage, identifying and matching types of cases to the most appropriate case management procedure;
(e)setting realistic timetables, and monitoring and controlling the progress of each case;
(f)ensuring that parties and their lawyers comply with these Rules, any practice directions and procedural orders;
(g)considering whether the likely benefits of taking a step justify the cost of that step;
(h)dealing with as many aspects of the case as possible on the same occasion;
(i)minimising the need for parties and their lawyers to attend court by, if appropriate, relying on documents; and
(j)having regard to any barriers to a party's understanding of anything relevant to the case.
…
1.08(1) Each party has a responsibility to promote and achieve the main purpose, including:
(a)ensuring that any orders sought are reasonable in the circumstances of the case and that the court has the power to make those orders;
(b)complying with the duty of disclosure (see rule 13.01);
(c)ensuring readiness for court events;
(d)providing realistic estimates of the length of hearings or trials;
(e)complying with time limits;
(f)giving notice, as soon as practicable, of an intention to apply for an adjournment or cancellation of a court event;
(g)assisting the just, timely and cost-effective disposal of cases;
(h)identifying the issues genuinely in dispute in a case;
(i)being satisfied that there is a reasonable basis for alleging, denying or not admitting a fact;
(j)limiting evidence, including cross-examination, to that which is relevant and necessary;
(k)being aware of, and abiding by, the requirements of any practice direction or guideline published by the court; and
(l)complying with these Rules and any orders.
(2)A lawyer for a party has a responsibility to comply, as far as possible, with subrule (1).
Note:The court recognises that a lawyer acts on a party's instructions and may be unable to establish whether those instructions are correct.
(3) A lawyer attending a court event for a party must:
(a) be familiar with the case; and
(b) be authorised to deal with any issue likely to arise.
Note:The court may take into account a failure to comply with this rule when considering costs (see subrule 19.10(1) and subclause 6.10(1) of Schedule 6).
In AON Risk Services Australia Limited v Australian National University [2009] HCA 27 French CJ observed that as part of a court’s case management principles and rules, it was appropriate to consider the potential for loss of public confidence in the legal system which could arise where a court was seen to accede to applications made without adequate explanation or justification. To that philosophical concept can be added that for a court to simply ignore a failure by a litigant to meet deadlines about which other litigants complain can clearly have an impact on the confidence in the justice system. It aggravates and frustrates not just the litigants in the particular proceeding but others who watch waiting and hoping to have their cases determined. Particularly relevant to this Court is the clear and unambiguous requirement of its rules (see r 1.04).
In AON Gummow, Hayne, Crennan, Keifel and Bell JJ referred to rule 21 of the relevant Territory court civil procedure rules that set out that the purpose of the rules was to facilitate the “just resolution” of the “real issues” in (proceedings) with minimum delay and expense. The rules required the parties to “help” the court to achieve the objectives. Their Honours without specifically deciding the point, observed that the real issues may extend beyond pleadings. It was noted that other courts have this same objective. It is clear that this Court has as well.
The High Court said there can be no doubt about the importance of speed and efficiency in the sense of minimal delay and expense. Those are essential to a just resolution of proceedings. Those same principles however must not be seen to detract from the proper opportunity being given to parties to plead their case or, in this case, an opportunity to pursue discovery.
What is the asserted bias?
The wife drew attention to a variety of discussions from the transcript. I do not intend to traverse all of them as they all fit within the same concept of discussion to achieve the purpose to which I have already referred. In one, there was a discussion between bench and bar about the relevance of family violence. The wife said it related to her spousal maintenance claim although a fair reading of the transcript will show that I was inquiring of counsel the relevance to financial matters. I inquired what the basis of her contribution was in this modestly short marriage in circumstances where her counsel was seeking litigation funding. He raised the subject of the wife’s role being that of personal assistant to the husband and my remark that followed showed that I was drawing his attention to the fact that there were off-setting benefits of that role in international travel such as dining out and the like. I accept the wife does not read the dialogue that way but that is not the test. Nothing seems to have concerned counsel at the time because no application for disqualification was made but in one example, counsel clearly corrected my factual error. All of this has to be seen through a set of eyes to which I shall return on the subject of prejudgment.
A significant amount of time was spent by the wife questioning statements I made in discussion with her then counsel about the importance in this particular case of discovery. My understanding is that the wife has taken the view that I have either minimised its importance or alternatively said she could not pursue it because it was not relevant. I do not accept that any of those matters could be concluded from not just the discussion with counsel but more importantly, the orders I made. This latter point becomes important on the issue of the adjournment of the trial.
On 11 December 2017, after hearing from both counsel, I ordered:
[1]That the wife’s application for spousal maintenance and partial property settlement are adjourned to 10 am on 22 January 2018 for a one day hearing.
[2]That…the wife provide to the husband a copy of the electronic messages in her possession, power or control.
[3]That all parties have leave to issue an application in a case relating to discovery
Two significant things can be said about those orders in the context of the discussion which seems to have caused the wife some angst. First, if she was troubled about the court not hearing her spousal maintenance case, I had set aside a day for that only a few weeks later. However, on the application of the husband, I made the order about the electronic messages because he asserted they were relevant to the spousal maintenance issue. Secondly, discovery was an issue for the wife and I gave her the opportunity to litigate her concerns.
The matter came back before me on 22 January 2018 and argument ensued about both the maintenance and the compliance by the wife with the order about the messages. I dealt with the wife’s application for litigation funding and made an order that the husband pay $80,000. She had sought $200,000. The wife saw something odd in the fact that I declined to give her all of what she sought on the basis that at that time, there was no final hearing pending. Thus, I found no justification for such an order but the basis upon which my limitation was pronounced was that it was the husband’s submission that it “was by no means ‘fanciful’ that a $200,000 payment could exceed” her property entitlement. The wife’s position was that it was “unthinkable” that she would not get more than $200,000. I referred to my cautious approach that there may be difficulty getting the money back again if the husband was correct as it would have been expended. To add to the degree of difficulty, there was no evidence as to what the wife’s solicitors anticipated would be spent on legal fees and her counsel was described by me as being “reticent” to proffer details without instructions. Competent practitioners know that in a litigation funding case, evidence of that is usually critical to give the court a sense of what is needed to be spent. There was no evidence here.
The wife’s spousal maintenance application was stayed until such time as she provided the documents ordered in the previous December. It transpired that some of the material pursued by the husband had been provided just before the hearing date. I was satisfied that the husband was disadvantaged by the wife’s approach and the wife had not complied with the order.
All of these reasons have been published.
It is of some importance to note that the wife had the opportunity to have the matter of her spousal maintenance relisted but also an opportunity to seek litigation funding again but did not take those opportunities. She also did not appeal against any of those orders.
On 17 April 2018, the matter returned to court. This time, Mr Glick QC appeared for the husband and Mr Wilson of counsel appeared for the wife. Mr Glick began with the following remarks:
We were intending this morning to seek from the court an indulgence in the sense that we would ask your Honour to resurrect the offer generously made in December to have an expedited hearing…
The transcript shows that I raised the issue of timing indicating that the court could accommodate the matter in June. However, the “we” mentioned by Mr Glick was not referring to a common approach. Mr Wilson said that his instructors had only just received notification of the matter being listed for mention and he asked for an adjournment because of the absence of the wife. He said:
And I would ask your Honour to adjourn this mention or whatever we call it if we’re going to talk about the possibility of setting it down for a trial date when she can be here.
Mr Wilson then said that he had “general instructions” but that the wife was saying there had been “significant non-disclosure by the husband” and the case should not proceed to trial until the disclosure issues were “resolved”. He acknowledged a subpoena had been served on the husband’s solicitors seeking documents but added that he was not asserting that there had not been compliance. Rather, he said, “that’s one of the issues that my client and my instructor need to work through”. He then added that the wife wanted proper discovery before the matter was set down.
Having been alerted to a discovery dispute, I inquired of Mr Wilson what had been done about it and quite properly, he said he did not have an instructor or client present to respond.
Mr Wilson then said his client needed to bring an application about discovery and that it could be prepared “in the next week or two”. I then remarked that an application should not have been necessary because of the parties having practitioners whom I had anticipated were experienced.
In the conflict/apprehended bias submissions, the wife made reference to those last remarks. I am unclear why she saw the reference to correspondence between practitioners as giving rise to some form of pre-judgment about her property entitlement. The only inference open was that I was indicating that with the issue being unclear about what documents had or had not been provided, two competent lawyers should have been able to work out what needed to be done. That remark has to be seen in the context of the wife’s complaints about the husband’s lack of discovery as far back as 2017. Importantly, I was inquiring why even if an application to enforce or pursue discovery had not been made, what correspondence between the lawyers had taken place. There was then reference to the subpoena to the husband’s solicitors. Although Mr Wilson did not complain about the responses of the solicitors for the husband, the wife in the present application seemed troubled. When I inquired whether the court record disclosed compliance by production of documents, it showed that the documents had been lodged on 4 April. However, no notice to inspect had been filed by the wife’s solicitors. The wife did not give an explanation as to why that was so if discovery was so significant. The administrative procedure now makes it so much easier for inspection to occur. It seems the wife and her solicitor had not done it.
Another discovery-related issue was that the husband had provided documents through electronic means and that occurred in 2017 but when the wife went to examine the documents about a year later, the “link” had disappeared. The wife made submissions that this was strange but I remain perplexed as to why the documents had not been comprehensively examined over the whole of the preceding year. Indeed, as the transcript of April shows, Mr Glick made specific reference to that fact.
The transcript shows that in respect of discovery, Mr Wilson raised the fact that the husband seemed to be saying that he did not have to disclose documents because there was an argument about his beneficial interest in property. I asked the relevance of the discovery bearing in mind the duration of the relationship and discussion then ensued. In the present hearing, the wife pointed to my observations about the connection between discovery and short relationships. As best I can understand her point, she was asserting that I was again saying that the husband had no obligation and/or that the relationship was not of importance because of its duration. I reject any of those inferences and refer again to the transcript where there was obvious discussion about trial management obligations of the court in circumstances where time was passing by for a case filed in 2016 and discovery had not been finalised. The reference of Mr Glick to the offer of a hearing being expedited is poignant in this case not so much because of the time that has elapsed without a final hearing but because the wife has had considerable time to enforce any unfulfilled discovery obligations because she had legal representation. No explanation has been given as to why so much time has gone by in which the court has put in the management resources (usually early in the morning) and the husband has attended them all and been represented.
To add to that, the transcript then shows that Mr Glick said that if the wife “properly wanted a document”, it would be given to the solicitors. I reiterate this statement was made on 17 April 2018.
There was then discussion about when the wife’s counsel would be available for this discovery and listing mention and concerned to keep the same counsel of choice in the proceeding as best I could, I accommodated that.
On 26 April 2018, despite my endeavour to accommodate Mr Wilson, Dr Ingleby appeared for the wife. The wife was not present but that was apparently known to everyone at the bar table and no objection was taken to the matter proceeding in her absence.
Dr Ingleby began by raising again the “outstanding discovery issues” and the question of the case being set down for trial. He had been unable to obtain instructions so was unable to say what discovery was required as being outstanding. Having regard to what had occurred 9 days before, it was perplexing that counsel had not been provided with instructions nor, more importantly, had any application or affidavit been prepared.
The husband had come prepared for an argument about discovery and had filed an affidavit by his solicitor on 24 April about all of the discovery that had been undertaken. Mr North SC pointed to the correspondence in which the solicitors for the husband asked the solicitors for the wife to “particularise” what it was that had been deficient. In other words, having been put on notice again in the middle of April that there was a looming dispute about adequacy of disclosure, and the husband had filed an affidavit anticipating such a dispute, one had to ask what the wife was doing.
The recusal test
I turn then to the test for contemplating judicial recusal. Mr North for the husband offered to draw may attention to the authorities but as I explained at the time, I was familiar with them. I do not intend to traverse them all either.
The principles applicable have been comprehensively explained in Johnson v Johnson (2000) 201 CLR 488 and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
In Johnson Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ set out those principles saying that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias 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. That observer is not taken to have detailed knowledge of the law or the character of the judge but the reasonableness of any suggested bias is to considered in the context of ordinary judicial practice. Hence my reference earlier to the rules and the common practice of testing propositions to assist management.
It is also important to note that their Honours also said it had to be remembered that the observer is taken to be reasonable and the person being observed is a professional judge whose training, tradition and oath require that judge to discard the irrelevant, the immaterial and the prejudicial.
In Ebner Gleeson CJ, McHugh and Hayne JJ expanded the test observing that judges have a duty to exercise their judicial functions when jurisdiction is invoked; they do not select their cases and cannot decline to hear a case without good cause. If objection is raised, it should not prevail “unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case”. I stress the use of the word “substantial”. Earlier, in Re JRL; ex parte CJL (1986) 161 CLR 342, Mason J made the point that:
It needs to be said loudly and clearly that the ground for disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.
That observation is pertinent when the impugned words arise from a series of hearings at which various counsel attend and no-one raised the issue of pre-judgment. It is significant in the present case that whilst the wife expresses concerns about statements I made, much of her focus was on the discovery issue and her entitlement to spousal maintenance. There is undoubtedly, in her mind, a connection between the words I used in discussion with counsel in those hearings and the conflict of interest issue with which I began these reasons. However, I consider those earlier matters should be removed from consideration here because none of them were factually sound. Thus, the focus must be on what happened in the courtroom itself.
In Ebner (supra), their Honours went on to say that apprehended bias was about the absence of impartiality. That is an important part of the test by which to judge the conduct of the judge.
In Strahan & Strahan (Disqualification) (2009) FLC 93-414, the Full Court considered Ebner and said that it had articulated a two-step process. The first was to identify the matters said to give rise to the apprehended bias and the second required a consideration of the logical connection between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits. This particular consideration of the test in the present case is my focus.
The wife has identified, as concerning to her, those parts of the transcript in which I challenged counsel about her non-compliance with the order to which Mr Mellas had taken no objection and how her case for substantive as well as interlocutory relief was being put. The transcript shows that the husband had identified the electronic messages as important to his defence of her claim for maintenance. But, the thrust of the wife’s complaint seemed to be that I had focused on something that she could not fulfil yet I had not been concerned about the husband’s non-compliance with discovery. Having regard to the way in which Mr North put the application for the production of the Whatsapp messages and Mr Mellas did not object, the wife’s complaint has no substance. It is important to observe that I stayed the proceeding of her claim until she had complied. Thus, the remedy was in her hands. If, as she seems now to allege, she could not comply, no application was made to have the application for spousal maintenance resurrected.
The transcript shows that I observed that the way the litigation was being conducted, it would not be heard until 2019 and the wife focused on that saying that in April, I had expedited a hearing with a very short lead-in time. The proceedings were brought back on by request of one of the practitioners and I have no understanding of which. Suffice to say that if a party seeks to have a matter listed, the court will accommodate it. If there is a dispute about the matter being listed at all, the proper approach is to have the court decide in open court whether the request was inappropriate. An application supported by brief affidavit would have been quickly listed. In Melbourne, a judge is specifically allocated each week to deal with all interlocutory matters deemed urgent. No such application was made by the wife. In my view, the two concepts of the possible delay until 2019 and the expedited hearing are not connected. When Mr Wilson who was embarrassed by the absence of instructions sought the opportunity to obtain them, he was given that opportunity.
The transcript of the discussion between Mr Glick for the husband and me shows that his client could be ready quickly. Mr Wilson made it clear the wife could not but that was because the interlocutory issues were incomplete. That lack of readiness must be seen as a matter in the hands of the wife because the first order to which my attention was drawn was by Judge Riley in the Federal Circuit Court. That was a consent order so drawn by the parties. It sets out specifically what each had to disclose and to the extent therefore that the husband had not complied, the wife had over a year to pursue those matters. The various orders show that I gave her the opportunity to bring such interlocutory application as she was so advised.
Reference in her submissions in the present application to discussion about family violence also concerned the wife. A reading of the transcript will show that I was questioning the relevance of it. To do otherwise would not meet the matters set out in the rules to which I have referred.
In my view, a reasonable observer who was aware of the nature of the proceedings and the rules of court, and particularly one who had attended the successive hearings, would take the view that the wife was being given every opportunity to make her case clear and in particular to bring an application in relation to discovery if there was a dispute about relevance.
I consider there is no logical or real connection between the matters raised in the present application by the wife and the fact that I indicated clearly that the substantive proceedings should be heard. In my view, a reasonably well-informed observer who knew of the matters set out in the tests to which I have referred would not find that I had pre-judged the case at all.
The wife’s application for recusal must be dismissed.
The adjournment
I have already referred to AON (supra) and the responsibility of the Court to use its resources wisely. The first fundamental question in an adjournment application is why the litigant is not ready. The second question is, if not ready, when would she be ready. The third question is what explanation is there for the lack of readiness in the context of the point at which the litigation had reached. The fourth question concerns the prejudice to the person applying for the adjournment if it is refused and for that to be examined in the context of the substantive relief that is being sought. The fifth question is the prejudice to the other litigant and whether it could be ameliorated by an order for costs.
On all questions, the wife’s responses were unsatisfactory.
The answer to the wife’s readiness must be because of two things. First, there is the incomplete discovery. The second issue is whether her lawyers have let her down in some way or she had other distractions that precluded her from preparing. In respect of discovery, I reject the suggestion that she has not had sufficient opportunity to pursue what she wanted. Leaving aside what court applications she could have brought, the evidence of Ms E shows, as do the remarks of Mr Glick QC, that the husband had provided what was required of him. I am perplexed that the wife and her lawyer have undoubtedly spent considerable time, and resources, on issues other than pursuing the interlocutory issues that she was concerned about. The wife did make a remark about the fact that she had given instructions to have those matters pursued but that is a matter she can take up with others.
There is undoubtedly a problem with the wife’s health and she pointed to affidavits filed last year. Those affidavits could not assist her now if her health is a basis for not being ready for trial. Apart from a generic doctor’s certificate to say that she was unable to attend work, there was no attempt made to advise the Court why there was a handicap. There was no affidavit material addressing the medical issue if it was a problem. According to the wife, she was in the hands of her doctors and had some surgery but that was at a time when she was represented by the lawyers who now have ceased to act. I again point to the requirement of lawyers to fulfil the obligations under orders. There is no explanation here as to why the wife’s lawyers were not fulfilling their responsibilities in respect of the preparation for trial or indeed, if they saw discovery and litigation funding as an issue, those matters either.
An adjournment can often be the catalyst for getting litigation on track and readiness for trial. When I inquired of the wife when she would be ready, she was unable to say. She was evasive and unhelpful. It beggars belief that, as her material was due to be filed by 6 June, her solicitors, and she, had not discussed how the problem of gathering evidence and seeking relief was to be addressed. The wife’s application was simply that the matter be adjourned to “a date to be fixed”. There was no suggestion that she intended to instruct lawyers. There was no suggestion that she had any understanding of what her entitlement was even if she obtained the discovery she was seeking.
The wife’s position was akin to the fact that there was indecent haste here. This case has been in the court system since 2016. Notwithstanding media (and I suspect the government’s own view) my experience in Melbourne is that matters at least under my control have rarely been delayed. This case has been delayed because it was begun in the Federal Circuit Court. It has not been “bounced” back and forth. Once sent to this Court, it has had management. The difficulty has generally been the wife’s readiness for trial. One observation made by the wife and set out in her affidavit was that there had not been a mediation. I understand there is a modern view that mediation is capable of solving all matters. I have doubts in a case such as this as there was no indication from the wife of any intention to negotiate. Her lack of readiness for trial would be replicated in any mediation but worsened because in mediation, there is no enforceable control or management. I find the wife has no intention of getting ready for a conclusion of this matter in circumstances where, I consider that, as the relationship was short and the contributions easily identifiable, it is not difficult.
I have already dealt with the wife’s lack of readiness in contrast to the husband. Whilst the wife is now without legal representation, that does not explain why the issues that go with readiness for trial have not been addressed.
There is prejudice to the wife but so too to the husband. In my view, having regard to the state of the wife’s case, a costs order would not likely solve the prejudice to the husband. It must be clearly said that the wife may have the disadvantage of being without legal representation but the Court has obligations to endeavour to create a level playing field. In addition, even if the matter were to proceed on an undefended basis, that does not mean that the husband would get the orders he proposed by default. He still has to prove his case.
On balance, the wife has not satisfied me that it is just to grant an adjournment.
It is unnecessary for me to then address the other issues raised by the wife.
The husband sought orders that he be able to rely upon sworn valuations. The wife objected on the basis that they had only just been served and in her view, they were outside the timetable for the husband to file materials.
There is a simple explanation for this dilemma. The husband approached the wife to agree on valuations indeed by way of notice to admit. Through her solicitors, so no doubt well considered, she filed a notice refusing to make admissions. The husband’s solicitors then endeavoured to have the wife choose the valuer but she did not respond. The husband knew that the valuation evidence was critical. The wife’s approach was perplexing. I can only presume that she anticipated confidently that the trial would not proceed and that she would then sooner or later address that issue. If she did that with advice, bearing in mind her solicitors were still acting for her when these activities were occurring, it was folly.
In my view, the court needs the valuation evidence and to the extent that the wife has prejudiced herself by not earlier obtaining her own evidence, that is a problem she has to face. If she proceeds without legal representation, she can cross-examine those valuers.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 19 June 2018.
Associate:
Date: 19 June 2018
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