Hayes and Eddington (No 2) - [2014] FamCA 244

FAMILY COURT OF AUSTRALIA

HAYES & EDDINGTON (NO 2)

[2014] FamCA 244

FAMILY LAW – DISQUALIFICATION – where the applicant seeks that judge disqualify himself – where the respondent opposes the application – where the test of apprehended bias is not satisfied – application dismissed

Evidence Act 1995 (Cth) ss 131, 135

Ebner v Official Trustee in Bankruptcy; Cleane Pty Ltd v ANZ Banking Group [2000] HCA 63; (2000) 205 CLR 337.

APPLICANT:

Ms Hayes

RESPONDENT:

Mr Eddington

FILE NUMBER:

MLC

2949

2012

DATE DELIVERED:

25 March 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Benjamin J

HEARING DATE:

25 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr St John SC

SOLICITOR FOR THE APPLICANT:

C E Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Bartfeld QC

SOLICITOR FOR THE RESPONDENT:

Glezer Lanteri & Associates

Orders

The oral application made on behalf of the applicant on 25 March 2014 that Benjamin J disqualify himself from the further hearing of the applications in these proceedings be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hayes & Eddington (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2949 of 2012

Ms Hayes

Applicant

And

Mr Eddington)

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This morning Senior Counsel for Ms Hayes (“the applicant’) made an oral application on her behalf that I disqualify myself from the further hearing of these proceeding on the basis of perceived bias. That application was made following ex tempore reasons I had delivered yesterday afternoon in regard to the question of admissibility of an affidavit of the applicant which sought to be relied upon by the applicant. For the purpose of these reasons, it is of some value to me to reflect on the proceedings, and where they are at the present time.
In April 2012 the applicant commenced proceedings in this Court seeking unspecified orders for property and maintenance arising out of a relationship, she asserted was a de facto relationship, between herself and the late Mr Eddington (“the deceased respondent”).
The deceased respondent, at that time, was unwell and in November 2012 the applicant filed an amended initiating application, in which she again sought unspecified property orders and unspecified spousal, or partner, maintenance. In addition she sought a declaration that a de facto relationship existed between herself and the deceased respondent between early 1998 through to about June 2012. Directions were made for the parties to file affidavit material, and a number of affidavits were filed by the applicant, including those of hers on 1 November 2012 and 12 February 2013. Sadly, in February 2013, the deceased respondent passed away.
In May of 2013 an application was made by Mr E and Ms F (the executors of the Estate of the deceased respondent) to be substituted for the deceased respondent as parties to these proceedings. That order was made. Two other applications were contained in that application in a case. The first was that the proceedings commenced by the applicant on 4 April 2012, as amended on 1 November 2012, be dismissed for want of jurisdiction. That application eventually found its way before Bennett J, who in August 2013 received written submission in relation to the application made by the executors of the Estate of the deceased respondent.
Directions were made at that time for submissions to be provided by the applicant and submissions in response to those submissions on behalf of the Estate. The application was to be listed for hearing before her Honour in or about February 2014. On 17 February 2014, the applicant sought to file a further affidavit, of the same day, together with an affidavit of Mr B.
Unfortunately, Bennett J was unable to deal with the matter, and the matter came before Cronin J in February 2014. He made directions for objections to be set out in relation to those affidavits, and the responses to those objections. Yesterday the matter was listed for me to determine the jurisdictional question, and as an interlocutory application I was asked to determine whether the applicant was entitled to rely on the affidavit of Mr B having regard to the provisions of s 131 of the Evidence Act 1995 (Cth) (“the Evidence Act”) and whether the applicant was able to rely on her affidavit having regard to the provisions of s 135(1)(a) [sic] of the Evidence Act.
Submissions were made by both parties, and I delivered ex tempore reasons in that respect, particularly of the affidavit of the applicant, having regard to the application made today. I do not have a transcript of my reasons in relation to that determination, although I have some notes, albeit of very short and narrow compass.
I am conscious that the decision on which senior counsel for the applicant raises this application is not before me, and in fairness to Mr St John is not before him. He probably had an advantage in that I was speaking and thinking whilst he was making notes. By their nature, such ex tempore reasons are sometimes clumsy in terms of words. The basis upon which Mr St John asserts that I ought to disqualify myself is on that of perceived bias in that I have, or are said to have had to make a finding in relation to the three areas to which he identified at the commencement of his submissions.
The first was with regard to the timing submission made by Mr Bartfeld. The second was my acceptance of his submission generally. The third was that, in relation to the evidence of the applicant, I used the word “curious.”
The test to be applied in cases of apprehended bias is uncontentious. The principles are set out, clearly in the well-known case of Johnson v Johnson[1], Ebner v Official Trustee in Bankruptcy; Cleane Pty Ltd v ANZ Banking Group,[2] and were the subject of consideration of the Full Court in Hillier & Wootton[3] at paragraph 54. Hillier & Wootton was reported [2013] Family CAFC 11 and the law was clearly identified with regard to such an application.
[1] [2000] HCA 24; (2000) 201 CLR 488.
[2] [2000] HCA 63; (2000) 205 CLR 337.
[3] [2013] FamCAFC 11; (2013) 49 Fam LR.
Mr St John quite properly brought my attention firstly to the test, which was set out clearly in Ebner (supra) at paragraph 84, where the High Court said, and I quote:-
…However, in my view the test properly reflects the requirements of Ch III. What is in issue is not bias, but the appearance of bias. And as a practical matter, that can be determined by reference to considerations of reasonableness and fair-mindedness. And because the ultimate rationale for the requirement that courts appear to be impartial is the maintenance of public confidence in the administration of justice, it is appropriate that the test be formulated by reference to the reasonable apprehension of the hypothetical fair-minded lay observer.
Mr St John went on to set out the two steps process also provided in paragraph 8 of Ebner (supra), and I have no need to repeat that here. My task under s 135 of the Evidence Act was to weigh the prejudicial value against the probative value, and the prejudicial value in terms of fairness. Part of the material I had to consider in terms of that proper exercise of my duty in these proceedings was to reflect upon issues such as the timing raised by Mr Bartfeld, the submissions with regard to that timing, and with regard to the law, which I did.
There was a referral, by senior counsel for Mr Eddington, to the timing of evidence in the context of the determination as to what the applicant believed (as set out in paragraph 5 of her affidavit). I am not sure that the term "curious" was intended in the sense raised by Mr St John. It struck me on trying to remember what I had said yesterday was more in the sense of curiosity rather than criticism, but in the context it may well be, at the end of the day, for others to determine that because I do not have the material before me.
I am not satisfied that the findings I made, if, indeed, they were findings, were other than that which was necessary to determine the issue which was squarely put before me by the filing of the affidavit and, in fairness, in the context of the timing of the filing of that affidavit. Judges are required from time to time to determine what material ought to be before them. That is one of the very fundamentals of our duty. I am not satisfied, notwithstanding the submissions of Mr St John, that a fair-minded lay observer could conclude in all of the circumstances that I have prejudged or I am likely to prejudge or be likely to create an apprehension of bias in the primary determination.
In those circumstances, I am not prepared to disqualify myself from the further hearing of the application. I will direct, if it is of any assistance to the parties, that the reasons I gave yesterday will be taken out and placed on the Court file. I will also direct that the reasons I have given or endeavoured to give today will be taken out and placed on the Court file.
There is an application on behalf of the applicant to file in court today an amended initiating application, which is Exhibit A3 and which is in identical terms from that which was put before Cronin J on 18 February last, except that the word "further" has been deleted from the document tendered to me. There was objection taken to the filing of the document and it was not pressed. It is pressed today, although it is not clear from the position of the applicant as to whether it needs leave or does not need leave. Having regard to the orders made by her Honour Bennett J on 4 February 2013, it is likely that the matter need leave.
The amended application is, in fact, in furtherance, in my view, of the substantive proceedings and would be able to be filed if the jurisdictional argument is determined in favour of the applicant. It is my primary task, as set out in Norton & Locke [2013] FamCAFC 202, is to determine the jurisdictional facts and determine the jurisdictional argument, and as such I do not grant leave in respect of this document at this stage, and I will proceed with that aspect of it.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 25 March 2014.

Associate:

Date: 25 March 2014