Finch v Heat Group Pty Ltd

Case [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 transcript

DEPUTY CHIEF JUDGE MERCURI

Introduction

  1. 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.

  2. Before the…

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Details
AGLC
Finch v Heat Group Pty Ltd [2022] FedCFamC2G 848
Case
[2022] FedCFamC2G 848
Decision Date

CaseChat Overview and Summary

The parties involved in the case of Finch v Heat Group Pty Ltd were the applicant, Finch, and the respondent, Heat Group Pty Ltd. The applicant sought the recusal of the judge, claiming that he had previously been a partner at the firm of Minter Ellison and had not disclosed this information. The respondent, on the other hand, had applied for an order to restrain the applicant from making an application to restrain the respondent from being represented by Minter Ellison and Mr Felman of counsel in the proceedings. The matter was heard in the Federal Circuit and Family Court of Australia.

The legal issues that the court had to decide were whether the judge had failed to disclose that he had been a partner at Minter Ellison, whether he had failed to disclose that he had worked at Minter Ellison at the same time that Mr Felman was also an employee there, and whether the judge had demonstrated actual or apprehended bias in his dealings with the applicant during the hearing on 2 March 2022. The court had to determine whether the judge should recuse himself from dealing with the matter on the basis of bias, actual or apprehended.

The court considered the principles that apply to claims that a judge ought to recuse themselves due to actual or apprehended bias. The court referred to the decision of Charisteas v Charisteas & Ors, where the High Court of Australia held that 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 court also noted that 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. The court found that the judge had not failed to disclose that he had been a partner at Minter Ellison, as he had not been required to do so. The court also found that there was no logical connection between the fact that the judge had worked at Minter Ellison at the same time that Mr Felman was also an employee there and the feared departure from the judge deciding the case on its merits. Finally, the court found that there was no evidence to suggest that the judge had demonstrated actual or apprehended bias in his dealings with the applicant.

The court dismissed the application for the judge to recuse himself from dealing with the matter on the basis of bias, actual or apprehended. The court found that there was no reasonable apprehension of bias and that the judge was able to bring an impartial mind to the resolution of the question he was required to decide. The court made no orders in relation to the recusal application.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.ConsiderationRecusal 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].