Fletcher v George and Ors (No.7)
[2010] FMCA 541
•16 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FLETCHER v GEORGE & ORS (No.7) | [2010] FMCA 541 |
| BANKRUPTCY – PRACTICE & PROCEDURE – Federal Magistrates – disqualification from hearing case – perception of bias – turgid proceedings – self represented litigant – involved in other proceedings in other courts including the Supreme Court of Queensland, the Court of Appeal Queensland and the Full Court of the Federal Court. |
| Bankruptcy Act 1966 (Cth) |
| Clampett v Attorney-General of the Commonwealth of Australia [2009] FCAFC 151 Johnson v Johnson (2000) 201 CLR 488 Tomasevic v Travaglini (2007) 17 VR 100 |
| Applicant: | WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF LAUREN KAY GEORGE (A BANKRUPT) |
| First Respondent: | LAUREN KAY GEORGE |
| Second Respondent: | DR PETER IRONSIDE PTY LTD |
| Third Respondent: | DR PETER DOUGLAS IRONSIDE |
| Fourth Respondent: | NATIONAL AUSTRALIA BANK LIMITED |
| Fifth Respondent: | SUSAN WILSON |
| File Number: | BRG 709 of 2008 |
| Judgment of: | Burnett FM |
| Hearing date: | 16 July 2010 |
| Date of Last Submission: | 16 July 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 16 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr C.D. Coulsen |
| Solicitors for the Applicant: | Holman Webb |
| Solicitors for the First Respondent: | The First Respondent appeared on her own behalf |
| Solicitors for the Second Respondent: | Bell Dixon Butler Lawyers |
| Solicitors for the Third Respondent: | Bell Dixon Butler Lawyers |
| Solicitors for the Fourth Respondent: | Thynne & Macartney |
| Solicitors for the Fifth Respondent: | Lewis & McNamara Solicitors |
ORDERS
That the application filed by leave on 16 July 2010 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 709 of 2008
| WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF LAUREN KAY GEORGE (A BANKRUPT) |
Applicant
And
| LAUREN KAY GEORGE (A BANKRUPT) |
First Respondent
| DR PETER IRONSIDE PTY LTD |
Second Respondent
| DR PETER DOUGLAS IRONSIDE |
Third Respondent
| NATIONAL AUSTRALIA BANK LIMITED |
Fourth Respondent
| SUSAN WILSON |
Fifth Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The bankrupt makes application today for me to disqualify myself from the further conduct of this proceeding. The application seeks orders in terms of paragraphs 1 to 4 of her application, which she was granted leave to read and file today, but in summary, that is the essence of it.
This application represents another chapter in what can only be described as turgid proceedings. What ought to have been a relatively straightforward personal sequestration process has been significantly complicated by the manner in which the bankrupt has complicated her affairs, and in doing so, the manner in which the trustees have had to respond.
In doing this, she has not had the benefit of informed legal advice, and additionally since the involvement of her trustee, she has been involved in other proceedings in other courts, including the Supreme Court of Queensland, the Court of Appeal, Queensland, and the Full Court of the Federal Court. I note that she presently seeks special leave to appeal – in the High Court – one of the decisions of the Full Court of the Federal Court.
She does so, and has done so as a self-represented litigant. However, in common with most self-represented litigants, she lacks an appreciation of matters that permit proceedings to run smoothly to a final outcome, according to good law, practice and procedure. To that end, she calls for the court to assist her, which it will. However, there are limits and qualifications to any such aid.
These matters have recently been explored by Bell J of the Victorian Supreme Court in a decision of Tomasevic v Travaglini (2007) 17 VR 100. In that decision, His Honour conducted an extremely detailed analysis of the policy and law, at least in the area of dealing with self-represented litigants, and as a result of the scholarship, expressed in his judgment, one can find a very helpful summary of the law as it presently stands. Commencing at page 129 His Honour made these observations:
“On the basis of this analysis, I think I can summarise the law as it currently stands.
Every judge in every trial, both criminal and civil, has an overriding duty to ensure the trial is fair. A fair trial is the only trial a judge can judicially conduct. The duty is inherent in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR. The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.
Most self-represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.
The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. The Family Court of Australia has enunciated useful guidelines on the performance of the duty.
The judge cannot become the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented. The assistance must be proportionate in the circumstances - it must ensure a fair trial, not afford an advantage to the self-represented litigant.”
They are the overriding principles. It was with those principles in mind that I sought to administer this proceeding to date, and propose to do so into the future.
If I can deal then specifically with the matter of my disqualification. Before addressing the issues that are advanced by the bankrupt in support of her application, I would like to start first by identifying the relevant test.
The relevant test is to be found in the well-known passages of the High Court in the decision of Johnson v Johnson (2000) 201 CLR 488, where the majority commencing at paragraph 12 of the judgment referring to a test described in paragraph 11, being the test of:
“…whether or not 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.”
The court noted:
“That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision." The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".
Whilst the fictional observer, by reference to whom the test is formulated, 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 rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.”
It is particularly in that context that there is a concern addressed by the bankrupt. Lest there be any concern that the manner of exchanges give rise to the question of apprehended bias, I rely upon those observations. It is in fact, simply, a function of dealing with self-represented parties who suffer the two qualities noted by Bell J and others, that is, a lack of legal skill and ability, and objectivity, that in order to address those deficiencies in the context of proceedings before a court, there may be more than the usual quantum of exchanges between a self-represented party and the court.
In particular, given the absence of those two essential qualities by a self-represented party, there is a greater scope, in my view, for misinterpretation by that self-represented party of the intent and purpose of such exchanges. However, the need for such exchanges is often greater and gives rise, quite clearly, to the prospective dilemma of the need to provide, in this instance, the bankrupt with assistance, but at the same time to avoid such assistance as are being seen by a fair-minded and impartial observer, viewing such active involvement as giving rise to a perception of bias.
The principal factors that are advanced by the bankrupt in support of that view are these. First, she complains about an earlier detention. Second, she complains about observations made concerning the trustee. Third, she complains about departures from the operation of the Court rules in respect of an application. Fourth, she complaints about, in particular, one instance of an application for an adjournment, and finally she complains about or makes serious allegations about impropriety in the registry concerning the stamping of documents.
Dealing first with the question of her detention, she seeks to rely, to a large extent, upon observations made by the Full Court in a case of Clampett v Attorney-General of the Commonwealth of Australia[1], a case involving contempt in the face of the court. The case has no relevance for present purposes. The bankrupt, in the instance she complains of, was, in fact, being examined by the trustee in relation to the whereabouts an asset, that being an Hanoverian mare. The evidence is and was that the mare had significant value, something in the order of $70,000.00, and the mare had gone missing from the bankrupt’s property at or about the time that the trustee sought to exercise powers to recover the mare, pursuant to a warrant that had issued in his favour.
[1] [2009] FCAFC 151
The bankrupt’s interpretation of those events is, with respect, simply wrong, and there is, in my view, nothing that any fair-minded lay observer, fully informed of the facts, in this instance, would conclude that I made any adverse finding in respect of the bankrupt by reason of orders that were necessarily made, because of her refusal to answer questions that she was lawfully required to answer, pursuant to the provisions of the Bankruptcy Act.
Next, observations concerning the trustee. As I have earlier stated and the record will show, the applicant, in this instance, is a registered insolvency practitioner. He is a party in many proceedings in this court, as one of the leading insolvency practitioners in the State of Queensland. As my observations reflect, it is difficult not to know Mr Fletcher in that capacity. He is also the immediate past president of the Queensland chapter of the Insolvency Practitioners Association of Australia. It is against that background that any observations have been made about Mr Fletcher.
No observations have been made in relation to the conduct of this case, because this case to date has not yet been resolved. There is nothing to suggest there has been any impropriety to date in the manner in which he has conducted the proceeding. He has conducted the proceeding through the agency of solicitors and counsel, who no doubt have afforded him appropriate advice and the proceeding has been conducted in all respects in a regular manner. I do not think that any fair-minded lay observer again, informed of those matters and the facts would have any difficulty in accepting that observations about Mr Fletcher, in that context, would consider they gave rise to any question of prejudgment or bias.
Next, complaints about the operation of the rules. The bankrupt makes numerous complaints in respect of what could be said to be a partial application of the rules of court, and the bankruptcy rules in favour of the trustee and against the bankrupt herself. Putting aside the instances identified, and without descending into a detailed explanation of the many instances on her side of the record of which this is an instance where latitude has been afforded; this application has a turgid history particularly because of the points that have been taken by the bankrupt herself. As I have noted, she is self represented. The material which has come before the court on many occasions has been in a form which is inadmissible. On many instances she has been afforded significant latitude. Likewise, it is correct to say that there have been occasions when the rules, so far as the trustee is concerned, have been flexibly applied.
The charter of this court provided for in both its Act and its rules, is to attempt to resolve matters within its jurisdiction with as much economy and expedition as fairness and justice allows. Any latitude permitted to either party, in the conduct of these proceedings, has been done with a view to achieving what could be seen to be one of the statutory objects of this court. So much, I think, was recognised by the Full Court in its judgment on the appeal, which the bankrupt makes reference to. Again, in my view, no fair-minded lay observer, fully informed of the facts and the law in relation to these matters, would have any difficulty in concluding that anything done to date has demonstrated any bias or prejudgment on the part of the court in favour of one party or the other by reason of orders made pertaining to compliance with the rules. Indeed, it would be more likely, in my view, for a complaint made by the trustee, rather than the bankrupt, about the court assisting the bankrupt as it has. For instance, even today, by adopting a permissive approach to the material filed by the bankrupt in support of her application. It might be argued that contrary to the remarks of Bell J, the court has not, in fact, afforded fairness to the Trustee because it could be argued that the Court has sought to assist the self-represented litigant. While I refute any such suggestions, in my view it would be more likely for the Trustee to complain.
Next is a matter complained of in her affidavit concerning a toilet break. I note the observation in the affidavit. It is unfortunate, if indeed that is the way it was interpreted. That is an unfortunate interpretation by the applicant. As was noted by the Full Court, and I do not disagree with the Full Court’s observations as the record will demonstrate; the bankrupt is somewhat querulous. She is extremely prone to interrupt proceedings and regularly does so; and in that context if, on the occasion that she sought to interrupt proceedings, it was for the purpose of a toilet break, her earlier conduct, no doubt, was in part responsible. I do recall the matter having been adjourned, when she identified to me the need for a toilet break, although it was not until after she expressly requested such. It is my recollection that prior to her making such a request, I did indicate to her on a number of occasions that she was to sit down as submissions at the time were being advanced by one of the other parties. Again, in my view, a fair-minded objective person, viewing the proceedings, in full knowledge of all the facts, would not be inclined to the view that instance demonstrates any bias on the part of the court.
Finally a complaint is made by the bankrupt about impropriety in the registry. This is not a matter for this court. I do not see how it bears upon the conduct of this proceeding. I make no further observations in relation to it. There are other remedies available to the bankrupt if she thinks there has been misconduct somewhere else, but so far as I am concerned, it is not a matter for this court and I do not propose to deal with it further.
Having regard, then, to each of those matters, I am of the view that no fair-minded lay observer, informed of the matters and also of the law, would reach the conclusion which is advanced by the bankrupt. That is a fair minded observer would conclude that the court has not acted in a manner which is predisposed against her, or has reached or has prejudged or effected any prejudgment in respect of the principal application generally. This application is dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 02 August 2010
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