Finch v Heat Group Pty Ltd
[2022] FedCFamC2G 848
Federal Circuit and Family Court of Australia
(DIVISION 2)
Finch v Heat Group Pty Ltd [2022] FedCFamC2G 848
File number(s): MLG 576 of 2016 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 5 August 2022 Catchwords: PRACTICE AND PROCEDURE – competing restraint applications – application made by applicant to restrain respondent from engaging Minter Ellison and particular counsel – application made by respondent to restrain applicant from bringing restraint application – respondent’s restraint application dismissed – applicant’s restraint application adjourned for hearing.
PRACTICE AND PROCEDURE – application made by applicant for recusal on the basis of actual or apprehended bias – application dismissed.
Cases cited: Charisteas v Charisteas & Ors (2021) 95 ALJR 824
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 190, 191, 192
Charter of Human Rights and Responsibilities Act 2006 (Vic)
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submission/s: 5 August 2022 Date of hearing: 5 August 2022 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Ms N Stojanova Solicitors for the Respondent: Minter Ellison ORDERS
MLG 576 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JO-ANNE FINCH
Applicant
AND: HEAT GROUP PTY LTD
Respondent
order made by:
deputy chief jUDGE MERCURI
DATE OF ORDER:
5 AUGUST 2022
THE COURT ORDERS THAT:
1.The applicant’s recusal application be dismissed.
2.The respondent’s oral application that the applicant be prevented from bringing an application to restrain the respondent from being represented by Minter Ellison and/or Marc Felman of counsel be dismissed.
3.The applicant’s application for the respondent to be restrained from being represented by Minter Ellison and/or Marc Felman of counsel be adjourned to 27 October 2022 at 10:00am before Judge Riley (‘Restraint Application’).
4.The applicant file and serve any material on which seeks to rely in the Restraint Application, by way of affidavit and/or written submission, by 13 October 2022.
5.The respondent file and serve any material on which it seeks to rely in the Restraint Application, by way of affidavit and/or written submission, by 20 October 2022.
6.The proceeding otherwise be transferred to the docket of Judge Riley.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Revised from transcriptDEPUTY CHIEF JUDGE MERCURI
Introduction
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
Before the court is an application that I recuse myself from dealing with this matter on the basis of bias, actual or apprehended.
Background
This matter has a long history, having been transferred from the Federal Court.
For reasons that are not readily apparent, following its transfer, no further action was taken in relation to this matter until steps were taking by my chambers to have the matter listed for directions, which ultimately occurred on 2 March 2022. To the extent that that delay is the result of court inaction, I do apologise to the parties.
At the directions hearing on 2 March 2022, the respondent was represented by counsel and the applicant appeared on her own behalf. At the outset of the directions hearing, the applicant sought the assistance of a friend whom she said was aware of the long history of this matter. As it was my understanding that the purpose of the directions hearing was to program the matter to trial, at that stage I did not accede to the applicant’s request.
As is my practice, I raised with the parties whether mediation was appropriate and what orders might be required to prepare the matter for trial in the usual course.
Competing restraint applications
The applicant then indicated that she wished to make an application to restrain the respondent from being represented by Minter Ellison and Mr Felman of counsel in the proceedings. The applicant sought that that application be programmed for hearing prior to any final hearing date.
In response, Mr Felman made an oral application that Ms Finch be restrained from making such an application. He submitted that Ms Finch had already made an unsuccessful application which was when the matter was before the Federal Court, and had made further submissions in relation to the overarching purpose in sections 190 to 192 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘FCFCOA Act’) and the respondent sought an order preventing Ms Finch from making such an application.
Both applications were made orally and neither party had filed any material in support of those applications.
In light of the competing applications made, I stood the matter down to review and consider the issues raised and indicated I would advise the parties when I was ready to recall the matter to determine how it ought to proceed. I recalled the matter later that week on 4 March 2022.
Recusal application
At that time, and before I was able to advise the parties of my view as to how the matter ought to proceed, the applicant indicated that it had come to her attention that I had previously been a partner of Minter Ellison, and as a consequence, I ought to recuse myself from dealing with this matter.
In order to provide the applicant with an opportunity to properly articulate her recusal application, I made orders for the filing of written submissions and listed the recusal application to be heard on 12 May 2022. I also made orders for the parties to file material in relation to that application and as indicated, both parties did file that material and I have had regard to that material.
When the applicant’s recusal application was called on 12 May 2022, the applicant did not appear. Given the nature of her application and in light of the fact that she was self-represented, I adjourned the hearing of the applicant’s recusal application to today to allow her to appear and make oral submissions if she chose to do so.
As I have said, I have read the material filed by the applicant in support of her recusal application and today, the applicant seeks to rely upon those submissions together with a further reference made today to the overarching purpose and obligations in the court’s legislation.
In essence, it appears that the applicant seeks my recusal on the following grounds.
(a)I failed to disclose that I had been a partner at a firm of Minter Ellison;
(b)I failed to disclose that I had worked at Minter Ellison at the same time that Mr Felman was also an employee there; and
(c)In my dealings with the applicant in the course of the hearing on 2 March 2022, I had demonstrated actual or apprehended bias.
Consideration
Recusal application
The applicant has correctly stated the principles which apply to claims that a judge ought to recuse themselves due to actual or apprehended bias. The applicant also makes reference to a number of other instruments and documents, including the Charter of Human Rights and Responsibilities Act 2006 (Vic), which is a piece of legislation operative in Victoria, and the International Covenant on Civil and Political Rights. I do not propose referring specifically to those instruments, although it is not in dispute that it is a fundamental principle that litigants are entitled to expect that when they come before this court, they have a right to be heard and to have their matter determined by an impartial judicial officer.
The High Court of Australia has recently considered the principles that apply when an issue is raised as to the independence or impartiality of a judge. In the decision of Charisteas v Charisteas & Ors (2021) 95 ALJR 824 (‘Charisteas’), as stated by the High Court at paragraph [11] of that decision:
11.… The apprehension of bias principle is that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits”; and, second, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed. (citations omitted)
The court went on to say at paragraph [12] that:
12.… while the fair-minded lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”.
The facts in Charisteas concerned a claim of apprehended bias arising from interactions between the trial judge and counsel for one of the parties during the course of a hearing and whilst the judge’s decision in the matter was reserved. In that case, the High Court of Australia further noted:
18.… The apprehension of bias principle is so important to perceptions of independence and impartiality “that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined” (emphasis added). No prediction by the court is involved in deciding whether a judge might not bring an impartial mind to bear. No question as to the understanding or motivation of the particular judge arises.[1] (citations omitted)
[1] Charisteas v Charisteas & Ors (2021) 95 ALJR 824 at paragraph [18].
As stated, the decision in Charisteas involved a trial judge having frequent communications with the barrister for one of the parties without the knowledge or consent of the other party during and after the hearing concluded, but before delivery of the judge’s reasons.
In the context of the fair-minded lay observer, the High Court of Australia in Charisteas also noted at paragraph [21]:
21.… The hypothetical observer is a standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system. The hypothetical observer is not conceived of as a lawyer, but a member of the public served by the courts. It would defy logic and render nugatory the principle to imbue the hypothetical observer with professional self-appreciation of this kind.
These principles reflect what had earlier been said in the decision of Ebner v Official Trustee in Bankruptcy,[2] to which the applicant also refers in her written submissions, and in particular, what is said at paragraphs [6] to [8] of that decision, which I do not propose to repeat but have had regard to.
[2] (2000) 205 CLR 337.
I also note that as submitted by the applicant, there is currently a review underway as to whether issues of apprehended, or indeed, actual bias ought to be considered by the judge against whom that claim is made, and that review, I note, is ongoing.
The principles which apply to applications of this kind are not in dispute. The issue is whether, in applying those principles to this case, a reasonable lay observer would reasonably apprehend that I might not bring an impartial mind to the substantive application.
Association with Minter Ellison and Mr Felman
My association with Minter Ellison and any supervisory responsibilities I had with regard to Mr Felman came to an end in 2003, almost 20 years ago. Indeed, it is a matter of public record that prior to my appointment to this court, I was a partner at another law firm for some 13 years.
Having regard to those circumstances, a fair-minded lay observer would not, in my view, conclude that my association with Minter Ellison, including with Mr Felman whilst employed by that firm, without more, would give rise to an apprehension of bias.
All judges are appointed from the legal profession. Most often, they are appointed from the Bar, but increasingly, they are appointed from the solicitor branch of the legal profession. The mere fact that a person has worked in a firm, has been a partner in a firm, or is otherwise associated with a former staff member of the firm itself, without more, would not lead a fair-minded observer to conclude that they might not bring an impartial mind to the matters before them for judicial determination.
The situation may, of course, be different if a proceeding involved a party or a representative or indeed a witness with whom the judicial officer had current financial interest. That is not the case here.
Moreover, the High Court of Australia in Charisteas acknowledged that personal relationships exist between members of the judiciary and members of the legal profession. In that case, it was not the personal relationship itself that was the subject of criticism, it was the conduct of the parties during the litigation which gave rise to a reasonable apprehension of bias.
For each of these reasons, my failure to disclose my prior and historical association with Minter Ellison or the fact that Mr Felman had worked there during the same period does not require me to recuse myself from this matter.
Conduct of hearing on 2 March 2022
The applicant further claims that the manner in which the hearing was conducted on 2 March 2022 additionally gives rise to a claim of actual or apprehended bias. I do not propose to repeat each of the matters raised by the applicant in her written submissions. However, it appears that the applicant claims that having heard submissions from Mr Felman, which she asserts were inaccurate and misleading, portrayed the applicant in a poor light, giving rise to a possibility that I would pre-judge the applicant’s character and/or credibility.
As is evident from the brief summary I have given of the hearing, each party made an oral application in respect of the other’s future conduct of this matter. I did not determine those matters but rather stood the matter over, to allow me to consider the submissions made and as I say, I listed the matter later in the week, at which time I had intended to deal with those applications.
Similarly, I do not accept that a reasonable lay observer, having regard to my dealings with the parties during the hearing on 2 March 2022 in its entirety, would conclude that I might not bring an impartial mind to the issues for determination.
For each of these reasons, the applicant’s recusal application is dismissed.
Competing restraint applications
Before turning to the future progress of this matter, I will deal briefly with the two oral applications that were made on 2 March 2022.
As stated, the applicant seeks to make an application restraining the respondent from being represented by Minter Ellison and Mr Felman and seeks to have that application programmed for hearing before any further action is taken. The respondent seeks to restrain the applicant from making such an application.
For the following reasons, the respondent’s application to restrain the applicant from making such an application is refused and the applicant’s application will therefore be listed for a hearing.
In support of his application, Mr Felman referred to and relied upon sections 191 and 192 of the FCFCOA Act which requires parties to conduct proceedings in a manner consistent with the overarching purpose. It was submitted for the respondent that when regard is had to these provisions, the history of this matter, and in particular, the unsuccessful application for a restraint which was already made and dismissed, it was appropriate for and consistent with case management requirements for the court to make an order prohibiting the applicant from making further application to restrain the respondent from being represented by Minter Ellison and/or Mr Felman. It was conceded that such an order was an unusual one. Mr Felman submitted that nothing had changed since Pagone J’s decision which would warrant the restraint sought.[3]
[3] See Finch v The Heat Group Pty Ltd (No 2) [2016] FCA 791.
Ms Finch disagreed and said that there had been further conduct that she would rely upon in support of such an application.
As I say, at the time the matter was before me, no one had filed any evidence in relation to either proposition.
I am not satisfied that an order in the terms sought by the respondent is appropriate in this matter. The respondent’s application is in the nature of a strike out application or a summary dismissal application. Preventing a party from agitating an application, including on an interlocutory basis, is a significant step for the court to take and one which ought to be taken only in rare cases. I am not satisfied that this such a case.
Future programming of matter
This then leaves the applicant’s application for a restraint against the respondent being represented by Minter Ellison and Mr Felman. That matter ought to be listed for hearing at the first available date.
In circumstances where there has already been a delay in this matter, I do not wish to add further delay as a result of my own availability, which is limited for the remainder of this year. In those circumstances, I have made inquiries and Judge Riley is available to hear the applicant’s application on 27 October of this year.
I will therefore transfer the proceeding to Judge Riley’s docket and make procedural orders for the filing of material in anticipation of that hearing. Judge Riley will in due course then deal with the further programming of the matter.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 5 August 2022
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