Genesalio & Genesalio (No 3)
[2023] FedCFamC1A 214
•1 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Genesalio & Genesalio (No 3) [2023] FedCFamC1A 214
Appeal from: Genesalio & Genesalio (No 2) [2023] FedCFamC1F 611 Appeal number: NAA 223 of 2023 File number: MLC 7657 of 2018 Judgment of: AUSTIN, CHRISTIE & SCHONELL JJ Date of judgment: 1 December 2023 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Disqualification – Where two days before the hearing of the appeal before the Full Court the applicant filed an application seeking disqualification of the presiding judge on the ground of apprehended bias – Where the grounds for apprehended bias have not been established – Application dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32 and s 46
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, r 13.38
Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Genesalio & Genesalio (2023) 67 Fam LR 186; [2023] FedCFamC1A 109
Genesalio & Genesalio (No 2) [2023] FedCFamC1A 197
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Kartinyeri & Anor v Commonwealth of Australia (1998) 156 ALR 300; [1998] HCA 52
Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401; [2009] FCAFC 117
Livesey v NSW Bar Association (1983) 151 CLR 288; [1983] HCA 17
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
State of NSW v Kable (2013) 252 CLR 118; [2013] HCA 26
Number of paragraphs: 45 Date of hearing: 1 December 2023 Place: Sydney The Applicant: Litigant in person Counsel for the First Respondent: Mr Dinelli KC and Ms Frederico Solicitor for the First Respondent: Mazzeo Lawyers The Second Respondent: Did not participate ORDERS
NAA 223 of 2023
MLC 7657 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR M GENESALIO
Applicant
AND: MS GENESALIO
First Respondent
MR GENESALIO
Second Respondent
ORDER MADE BY:
AUSTIN, CHRISTIE & SCHONELL JJ
DATE OF ORDER:
1 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 29 November 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Genesalio & Genesalio (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
Two days before the Full Court was to commence hearing the applicant’s application for leave to appeal from an order made by a judge of the Federal Circuit and Family Court of Australia (Division 1), the applicant filed an Application in an Appeal seeking that the Full Court be reconstituted by my replacement with another judge. The applicant’s accompanying affidavit made it plain the application is designed to disqualify me from further participation in the appellate proceedings.
The applicant indicated he did not want the disqualification application determined in the absence of the parties in accordance with r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and so, due to the close proximity of the substantive hearing, the disqualification application was listed on the same day for anterior determination.
Recently, in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65 (“QYFM”), the High Court of Australia considered the manner in which disqualification applications made against a single member of an intermediate appellate bench should be heard and determined.
Kiefel CJ and Gageler J (as the Chief Justice then was) considered the Full Court should collectively hear and determine the application against the single judge (at [4]).
Jagot J considered the application should be heard and decided exclusively by the single judge (at [302]–[342]).
Gleeson J preferred to express no view on the matter (at [271]).
The remaining judges, Gordon, Edelman & Steward JJ (at [66], [94], [100]–[104], [108]–[109], [132]–[143], [152], [190] and [193]), considered the judge against whom the application is made should first individually consider the application, even if in the presence of the Full Court.
If the subject judge decides to recuse, his or her decision is dispositive and the other two judges need do nothing, though the disqualified judge needs to be replaced before the Full Court can proceed with the appeal.
If the judge dismisses the disqualification application, the remaining two judges must then decide for themselves whether the bench as constituted can continue to hear the appeal. The disqualification application is then determined by majority.
Given the application could not be listed any sooner than this morning, the Full Court determined to hear the application together, with me to deliver the first judgment. My colleagues will only be called upon for separate judgments if I decide to dismiss the disqualification application.
To prosecute the application, the applicant relies upon:
(a)his affidavit filed on 29 November 2023; and
(b)his Outline of Case Document filed on 29 November 2023.
The applicant’s affidavit affirms that his application is pressed on grounds of an apprehension of bias (at [1]).
Apprehended bias
In QYFM, the High Court endorsed the long-standing test for apprehended bias.
The cardinal principle is well known (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344–345; Johnson v Johnson (2000) 201 CLR 488 at 492):
…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. That principle gives effect to the requirement that justice should both be done and seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
Application of that principle entails two distinct steps, as was explained in Ebner at 345:
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. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
The “fair-minded lay observer”, whose objective opinions are the yardstick by which an allegation of apprehension of judicial bias is measured, is taken to be (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [232]):
…a rational person who is neither complacent nor unduly sensitive or suspicious and…someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally.
The applicant’s case
By reference to the applicant’s evidence and written submissions, the alleged apprehension of bias is said to arise from my judicial conduct. There is no suggestion that my alleged bias arises from any vested interest in the outcome of the application for leave to appeal (aside from a contention I have an interest in ensuring my judgments are consistent, which is not the sense in which an interest in the outcome is understood), association with one of the other two parties, or possession of extraneous information.
My involvement with the applicant, and hence my conduct with respect to him, has been limited to two appellate proceedings. In former appellate proceedings (NAA 141/2023), I dismissed his application to review the decision of the appeal registrar to summarily dismiss his application for leave to appeal from procedural orders made by the primary judge on 26 April 2023 (Genesalio & Genesalio (2023) 67 Fam LR 186). In the current appellate proceedings (NAA 222/2023), which concern an order made by the primary judge on 11 July 2023, I granted his first application to adjourn the appeal hearing, but refused his second adjournment application (Genesalio & Genesalio (No 2) [2023] FedCFamC1A 197).
It is, of course, essential for the applicant to precisely identify the aspects of my conduct which are of concern and the connection between such conduct and the feared deviation from my duty of impartiality. Doing the best I can to summarise the applicant’s written submissions, which are respectfully repetitive, he contends for an apprehension of bias on these premises:
(a)I fell into error on 6 July 2023 by dismissing his review application brought from the appeal registrar’s decision to summarily dismiss his last application for leave to appeal, by reaching a decision said to be not open on the facts, and so there is a reasonable apprehension I will now strive to be consistent in these current proceedings with my former decision and not be receptive to submissions about the former error;
(b)I pre-judged the outcome of his last application for leave to appeal by “prematurely dismissing the merits of [his] grounds of appeal as to an arguable case”;
(c)I was sarcastic within the reasons for judgment (at [31]–[33]) delivered when dismissing his review application from the dismissal of his last application for leave to appeal;
(d)I gave ex tempore judgment when I dismissed his review application concerning the last application for leave to appeal, suggesting I had pre-judged the outcome;
(e)I have presided over two interlocutory hearings in these current appeal proceedings, notwithstanding he told the appeal registrar – in person on 4 September 2023 and by email on 5 September 2023 – that he objected to my further involvement in the proceedings; and
(f)I was sarcastic in relation to the medical evidence adduced by him in support of his unsuccessful second application to adjourn these appeal proceedings.
For the following reasons, none of those contentions, either individually or in aggregation, can properly substantiate the claim of a reasonable apprehension of bias.
Error on 6 July 2023
In his affidavit, the applicant asserts this:
16.The finding by Austin J as to an arguable case at [27] in the reasons for decision made on 6 July [2023] was not open to him on the facts. …
The relevant paragraph of my reasons to which the applicant refers says this:
27.Whether or not the husband or wife actually do enjoy any legal or equitable proprietary interest in such assets will be determined after all relevant evidence is tested at trial. But once the wife demonstrated a reasonably arguable issue, rationally capable of being determined in her favour against the applicant’s interests, he necessarily became an interested party in the proceedings and the principles of procedural fairness demanded that he have the opportunity to refute the wife’s case at trial.
The applicant trenchantly contends the wife did not then, and cannot now, show a reasonably arguable case against him in the underlying proceedings before the primary judge, where she intends to allege an equitable proprietary interest in one or more assets of which he is the legal proprietor. But that is beside the point. I did not find the wife had demonstrated a reasonably arguable issue that would warrant his joinder to those proceedings as a party – the primary judge made that finding. I only found the applicant’s grounds of appeal, which sought to challenge the finding, had no reasonable prospects of success and so the registrar’s decision to summarily dismiss his application for leave to appeal from the primary judge’s orders was correct. The applicant tends to improperly conflate allegations of error supposedly made by the primary judge and me.
In any event, the applicant’s contentions are misconceived for another reason. The current appeal (if leave is granted to prosecute it) concerns the validity of the primary judge’s decision on 11 July 2023 to dismiss the applicant’s disqualification application. As much as the applicant might want to attack the primary judge’s former decision on 26 April 2023, and my refusal on 6 July 2023 to let him appeal from it, those decisions must now be treated as being valid and unimpeachable as both orders were made by a superior court of record, not set aside on appeal or quashed by prerogative writ (State of NSW v Kable (2013) 252 CLR 118 at [19], [32], [33], [38], [41], [56] and [57]).
Pre-judgment on 6 July 2023
The applicant’s application to review the registrar’s decision to summarily dismiss his last application for leave to appeal was dismissed on 6 July 2023 because his proposed grounds of appeal did not disclose any reasonable prospects of success. Such a decision was made in conformity with legal power (ss 32(3)(b), 32(5), 46(2) and 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
By definition, the process of summary dismissal does not entail a full hearing on the merits. Rather, it only requires a “practical assessment” of the suit’s prospects of success without the complete factual matrix and full argument (Spencer v The Commonwealth (2010) 241 CLR 118 at [25] and [47]; Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 at [28]).
Sarcasm on 6 July 2023
The particular paragraphs of the reasons for judgment delivered on 6 July 2023 with which the applicant takes issue say this:
31.The applicant has been joined to the original proceedings over his objection, but he does not thereby suffer any substantial injustice because he may choose not to participate in the trial. His status as a party now permits, but does not oblige, him to do so. Procedural fairness only demands that he be given the chance to be heard, not that he actually takes it (Allesch v Maunz at 184–185).
32.Nor is there any substantial injustice incurred by the applicant in being bound to allow the single expert witnesses unfettered access to contentious real and personal property.
33.Some inconvenience may be suffered by the applicant in having to contribute equally to the cost of engaging the single expert witnesses, but such inconvenience can be remedied in due course by him seeking a supplementary order compelling the wife to reimburse him for such expenditure in respect of the valuations of those assets in which she ultimately fails to demonstrate any proprietary interest enjoyed by either spouse.
Nothing within the text of those paragraphs could reasonably be construed as sarcasm.
The reasons were delivered ex tempore. Perhaps the applicant subjectively detected sarcasm in my voice as I delivered the reasons, but his subjective feelings are not evidence of how those paragraphs would have been objectively received. The text of those paragraphs seems quite unsuited to any sarcastic inflection upon oral delivery.
Ex tempore judgment on 6 July 2023
The applicant seems bemused that I was ready to deliver an ex tempore judgment at the hearing on 6 July 2023, but the delivery of ex tempore judgments is normal procedure, particularly in interlocutory contexts, as that was.
The appeal registrar had already summarily dismissed the applicant’s application for leave to appeal. The applicant applied to review that decision. His review application was listed for hearing before me. Being a de novo review of a registrar’s decision, I was familiar with the material in advance of the hearing. Like any other judicial officer, I formulated some provisional views which were explored during the hearing with the applicant’s legal representative. The applicant’s underlying application for leave to appeal disclosed no reasonable prospects of success and so the review application was dismissed. The registrar’s original decision was correct. Giving ex tempore reasons for that decision was quite orthodox.
Objections to my involvement
It may be accepted as correct that the applicant has made his feelings well known to the appeal registrar that I should not preside over, nor participate in, these proceedings.
However, judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked. Judges do not choose their cases and litigants do not choose their judges. If a party objects to a judge sitting, or continuing to sit, then the objection should not prevail unless it is based upon a substantial ground (Ebner at 348).
It would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt an approach that he or she should automatically disqualify him or herself whenever demanded or requested by one party to do so (Livesey v NSW Bar Association (1983) 151 CLR 288 at 294; Kartinyeri & Anor v Commonwealth of Australia (1998) 156 ALR 300 at 302).
Sarcasm on 15 November 2023
On 15 November 2023, I heard and dismissed the applicant’s second application to adjourn the appeal hearing.
The judgment was again delivered ex tempore and the applicant again complains of my sarcasm, this time in relation to the quality of the medical evidence upon which he relied. The adjournment application was refused because the medical evidence was not fit for purpose, as these excerpts of the reasons for judgment reveal:
6.However, the medical evidence upon which the applicant relies does not do the work he was hoping.
7.The medical certificate carries no evidentiary weight on the question of the adjournment. It simply certifies the applicant was “unable to work” from 31 October 2023 until 2 November 2023, but its probative value is vitiated because it does not say how the applicant’s medical condition hampers his participation in this appeal proceeding (Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]–[50]). Evidently though, the doctor who signed the certificate thought the applicant was fit for work for a full week before his Summary of Argument was due for filing.
8.The first medical report carries no evidentiary weight either. It observes the applicant has “had some health challenges recently” and still has “several outstanding medical issues”, but the lamentable lack of detail about his diagnosis and symptoms renders meaningless the ultimate opinion founded upon such generic observations. For expert opinion evidence to even be admissible, let alone carry any probative weight, the facts and assumptions upon which the opinion are based must be proven and the expert’s reasoning must be transparently exposed (Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [42], [91]–[101], [120]–[124] and [128]–[130]). That is not the case here.
9.Without pausing to comment upon the obvious inconsistency between the medical certificate and the first medical report as to the applicant’s fitness as and from 3 November 2023, the doctor concludes the medical report with this statement:
I would suggest [the applicant] has been unfit for the purposes of completing [court paperwork] since his admission to hospital on 29/9/2023, and will remain so until approximately 5/12/2023.
10.The medical opinion, such as it is, cannot be accepted at face value anyway because it is demonstrably contradicted by the applicant’s conduct. He has twice proven his fitness to “complete court paperwork” since his discharge from hospital. He did so on 6 October 2023, when he filed his first Application in an Appeal with supporting affidavit. He did so again when he filed this second Application in an Appeal with supporting affidavit on 10 November 2023. The applicant was also well enough to appear electronically at the hearing on 13 October 2023 and again today (15 November 2023).
11.The second medical report is just as enigmatic as the first. It is written by a doctor who confirms his or her collegiality with the doctor who wrote the first medical report and purports to corroborate the first doctor’s opinion. The second report attests to the applicant feeling fatigued over the past month and him taking antibiotics for a bacterial infection. Without any further pertinent discourse, it similarly concludes:
…I too would suggest that [the applicant] has been unfit to complete required paperwork since his admission to hospital on 29/9/2023, and will remain so until approximately 5/12/2023.
12.The second medical report is therefore beset by the same evidentiary problems which afflict the first medical report.
I simply repeat what I have already said in relation to the applicant’s last complaint of sarcasm. His subjective belief is not objective proof of it.
I am unable to discern how my conduct at the two hearings on 6 July 2023 and 15 November 2023, or the contents of my reasons for the judgments flowing from those two hearings, could reasonably be construed as a proper basis for the apprehension of bias. On the contrary, such past decisions are entirely consistent with the discharge of my judicial duty to impartially decide justiciable disputes on the merits. The applicant’s former application for review of the summary dismissal of his application for leave to appeal was dismissed because the proposed grounds of appeal evinced no reasonable prospects of success. His more recent second adjournment application was dismissed because the medical evidence he adduced was unsupportive of the adjournment. No findings have been made against the applicant to impeach his credit and the applicant has been treated with courtesy.
Disposition
The disqualification application is without merit and should be dismissed.
CHRISTIE J
I agree with the proposed order of Austin J and with the reasons delivered in support.
SCHONELL J
I have had the benefit of hearing the reasons for judgment of Austin J just delivered, that he recuse himself from taking part in this appeal.
I respectfully adopt the recitation of the procedural history, relevant facts and law as identified by his Honour.
The matters raised by the applicant in his affidavit, written and oral submissions, could not lead a fair-minded lay observer in the Ebner sense to reasonably apprehend that a judge might not bring an impartial mind to the resolution of this appeal.
With respect, I agree with his Honour’s determination to refuse the applicant’s application and the order as opposed.
AUSTIN J
Accordingly, the disqualification application is dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justices Austin, Christie & Schonell. Associate:
Dated: 5 December 2023
0
15
2