Huda & Huda and Laham - [2018] FamCAFC 85

FAMILY COURT OF AUSTRALIA

HUDA & HUDA & LAHAM

[2018] FamCAFC 85

FAMILY LAW – APPEAL – PROCEDURAL UNFAIRNESS – Whether interventions by the primary judge during the trial resulted in procedural unfairness to the husband and a third party – Where the primary judge found that the husband and third party had attempted to perpetrate a fraud upon the Court – Where the procedural unfairness challenge should be considered prior to any other challenges – Where an appellate court should restrict its assessment of the evidence to matters necessary to the finding of error – Where the evidence of the third party was that there was an outstanding debt owing to him by the husband – Where the veracity and reliability of the husband’s and the third party’s evidence was crucial to that issue – Whether the primary judge’s interventions impacted the ultimate findings – Where the “number, length, terms and circumstances of the interventions” were an important consideration – Where the interventions occurred at critical points of the husband’s and third party’s cross‑examination – Where the interventions, when read in the context of the transcript and the primary judge’s reasons as a whole, demonstrated procedural unfairness – Appeal allowed – Remitted for rehearing.

FAMILY LAW – APPEAL – COURTS AND JUDGES – Apprehended Bias – Whether the primary judge failed to bring an impartial mind to credit findings – Whether the conclusions of dishonesty were drawn without any factual foundation or from an insufficient factual foundation – Where the primary judge was not asked to recuse himself – Where the circumstances in this case can be distinguished from Vakauta v Kelly (1989) 167 CLR 568 – Where the failure to raise the issue of bias and seek the primary judge’s recusal militated strongly against the success of any such claim – Where apprehended bias not demonstrated.

Evidence Act 1995 (Cth) ss 140(1), 140(2)(c)
Family Law Act 1975 (Cth) ss 79, 97(3)

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Ellis v The Queen [2015] NSWCCA 262
F & B [2005] FamCA 265
Galea v Galea (1990) 19 NSWLR 263
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Lockwood v Police (2010) 107 SASR 237; [2010] SASC 120
M v M (1988) 166 CLR 69; [1988] HCA 68
Michel v The Queen [2010] 1 WLR 879; [2009] UKPC 41
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66
R v T, WA (2014) 118 SASR 382; [2014] SASCFC 3
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
T and S (2001) FLC 93-086; [2001] FamCA 1147
WK v SR (1997) FLC 92-787; [1997] FamCA 57
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

IN RELATION TO APPEAL NUMBER NA 47 OF 2016:
APPELLANT:	Mr Huda

FIRST RESPONDENT:

Ms Huda

SECOND RESPONDENT:	Mr Laham
IN RELATION TO APPEAL NUMBER NA 49 OF 2016:
APPELLANT:	Mr Laham
FIRST RESPONDENT:	Ms Huda
SECOND RESPONDENT:	Mr Huda

FILE NUMBER:

BRC

1238

2015

FIRST APPEAL NUMBER:

2016

SECOND APPEAL NUMBER:

2016

DATE DELIVERED:

10 May 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Thackray, Murphy and Kent JJ

HEARING DATE:

14 November 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

17 June 2016

LOWER COURT MNC:

[2016] FCCA 1256

REPRESENTATION

COUNSEL FOR THE APPELLANT /SECOND RESPONDENT:

Mr P Hackett

SOLICITOR FOR THE APPELLANT /SECOND RESPONDENT:

Bartels Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr G Shoebridge

SOLICITOR FOR THE FIRST
RESPONDENT:

Pullos Lawyers

COUNSEL FOR THE SECOND RESPONDENT/APPELLANT:

Mr C Wilkins

SOLICITOR FOR THE SECOND RESPONDENT/APPELLANT:

Kalyans Lawyers

Orders

Appeal No NA 47 of 2016 and Appeal No NA 49 of 2016 each be allowed.
The orders made by Judge Vasta on 17 June 2016 be set aside.
The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Vasta.
Within twenty-one (21) days of the date of these orders, the parties shall file with the Appeals Registrar and serve on each other relevant party, any written submissions as to the costs of the appeal, confined to not more than five (5) pages.
Within fourteen (14) days of the service of any submissions for costs, the parties shall file with the Appeals Registrar and serve submissions in reply to the submissions as to costs, if any.
In the absence of any written submissions to the contrary any applications as to costs shall be heard and determined by the Full Court sitting in chambers without the necessity for appearance by any party.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Huda & Huda & Laham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 47 of 2016; NA 49 of 2016
File Number: BRC 1238 of 2015

Mr Huda

Appellant /Second Respondent

And

Ms Huda

First Respondent

And

Mr Laham
Second Respondent/Appellant

REASONS FOR JUDGMENT

Almost 20 years ago the High Court said: “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”.[1] So, too, proceedings in the Family Court must be conducted “without undue formality”.[2] However, both modern judicial method and statutory informality have limits bounded by procedural fairness. The latter remains paramount because “having an impartial judge [seeing] fair play in the conduct of the case” is a “basic right underlying the adversarial system of trial”.[3]
[1]Johnson v Johnson (2000) 201 CLR 488 at 493 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[2]Family Law Act 1975 (Cth) (“the Act”) s 97(3).
[3] Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 (“Royal Guardian”) at [171] (Ward JA); [16] (Basten JA) citing with approval Lord Brown in the Privy Council in Michel v The Queen [2010] 1 WLR 879 at [31].
The central question in these two appeals heard together is whether interventions by Judge Vasta during the trial of proceedings for settlement of property pursuant to s 79 of the Act resulted in procedural unfairness to both the husband and to a third party, Mr Laham, as each alleges in their separate appeals.
These reasons seek to explain our conclusion that procedural unfairness is established.

The Challenged Interventions And Their Background

The husband and wife married in 2003. They have two children – a daughter born in 2005, and a son born in 2007. It appears to have been agreed that they separated under one roof for a time before separating finally in early 2015.
The husband works in the construction industry. He was involved in litigation during the marriage in respect of a debt owing to him of $200,000.00. Mr Laham is the husband’s friend. Each of the husband and Mr Laham allege that the financial difficulties created for the husband by the outstanding debt and litigation surrounding it led to the husband borrowing, between March 2005 and April 2006 a total amount of approximately $350,000.00. There is said to be interest owing on that sum such that, at trial, it was asserted that “in excess of $580,000.00”[4] was owed.
[4] Mr Laham’s affidavit filed 7 August 2015 at paragraph 9.
The husband asserted that the parties should be equally liable for that loan thereby reducing the net property available for distribution between them. Mr Laham became a party to the proceedings. He sought a declaration that he was an equitable mortgagee of specified property “as a result of money loans made by me to the [husband and the wife]”. He also sought (presumably in the alternative although not specified as such) a declaration that the husband and wife held the specified property on trust for him “to the extent of the value of the money loans made by [him] to the [husband and the wife]”. Mr Laham also sought an “order” that “the Court take into consideration the liability of the [husband] and the [wife] to me in determining the equity of the [husband] and the [wife] in [a specified] property when making any Property Adjustment Order in this matter between the [husband] and [wife]”.[5]
[5]Mr Laham’s Amended Application in a Case filed 12 November 2015 at page 2.
The wife alleged that no such loan or loans existed and that the document was concocted for the purpose of alleging a debt in the proceedings, thereby reducing the available property to be distributed and, in turn, her entitlement.
The interventions by his Honour related to this issue and the factual permutations underpinning it.
The primary judge’s interventions relate not to value-laden findings in respect of parenting orders.[6] It has been said in respect of proceedings for these orders that they are “not disputes inter partes in the ordinary sense of that expression”.[7] However, even parenting proceedings, “are not to be equated with inquisitorial proceedings”.[8] The Court “is not an investigative body conducting an inquisition but rather it is an adjudicative body determining a dispute that is brought before it”.[9]
[6] See CDJ v VAJ (1998) 197 CLR 172 at 219 (McHugh, Gummow and Callinan JJ): “Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions”.
[7] M v M (1988) 166 CLR 69 at 76.
[8] T and S (2001) FLC 93-086 at 88,522 [196].
[9] F & B [2005] FamCA 265 at [76].
These principles have particular application in a case where, as here, all parties are represented by experienced and competent counsel. They apply all the more so in proceedings for settlement of property such as these which have at their heart an assertion that the husband and a third party have concocted evidence so as to deprive the wife of an entitlement. The challenges embrace interventions within property proceedings which are directed to significant factual issues productive ultimately of a very serious finding that “a fraud” has been perpetrated on the Court. His Honour found at [80]:
I am satisfied that the evidence of both the husband and [Mr Laham] on the issue of these loans was a contrivance. I am satisfied that both men attempted to perpetrate a fraud upon this Court.
Authority not only dictates that we hear and determine a procedural unfairness challenge prior to any other challenges,[10] but also cautions that, “whenever a matter is remitted for a retrial, it is preferable that the appellate court restrict its assessment of the evidence to matters necessary to the finding of error”.[11] That is applicable acutely here where the circumstances said to lead to a finding of dishonesty of both the husband and the third party, Mr Laham, are very much in issue and are central to the ultimate determination of the property case.
[10] Royal Guardian at [9] (Basten JA) citing Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577.
[11] Royal Guardian at [13] (Basten JA).
Accordingly, while each appellant asserts other errors, including material errors of fact, some of which are said to be induced by the interventions, our reasons will be confined to the issue of procedural unfairness and a very brief consideration of a related challenge by the husband that his Honour’s interventions and reasons together indicate apprehended bias.
There were no written agreements for loan. However, annexure “A” to an affidavit of Mr Laham filed by leave on the first day of trial was said by Mr Laham to record each amount loaned. The provenance of that document; the fact that a copy rather than the original was produced; and apparently conflicting evidence about what became of the original, were the subject of some of the challenged interventions by his Honour and assume some importance in the challenges of each of the husband and Mr Laham.
As will be obvious, the veracity and reliability of the husband’s evidence was crucial to the determination of a central issue in the trial as was the veracity and reliability of Mr Laham’s evidence.
The husband relies upon each of the assertions of procedural unfairness made by Mr Laham as applying equally to him and adopts the submissions made by Mr Laham accordingly. His Honour’s finding at [80] earlier quoted provides part of the foundation for that approach.
Mr Laham’s grounds and subsequent written argument, group the impugned interventions as follows:
a)Denying Mr Laham an opportunity to adduce evidence-in-chief correcting a misstatement in an affidavit and then later cross-examining him about that misstatement so as to impugn his credit;
b)The primary judge largely “taking over” the cross-examination of Mr Laham and introducing that cross-examination with a comment in respect of an issue unrelated to the issues in the case that can be characterised as “facetious” or “derisory” or “sarcastic”;
c)The primary judge conducting a cross-examination that, in any event, involved asking questions in an impermissible and misleading form;
d)The primary judge was openly dismissive or sceptical of answers given by Mr Laham;
e)The questioning of the husband by the primary judge amounted to his Honour “tag-teaming” with counsel for the wife;
f)The primary judge adopted the role of “advocate” or “inquisitor” causing the trial to become in large part an “inquisitorial proceeding”;
g)Excessive intervention in the trial and cross-examination of the husband and Mr Laham generally; and
h)The primary judge’s finding that the husband and Mr Laham was each dishonest derived from excessive intervention in the trial proceedings by the primary judge.
The husband’s Initiating Application filed on 13 February 2015, sought both parenting orders and orders for settlement of property. The trial commenced before his Honour in May 2016. The proceedings for parenting orders resolved on the second day of the trial. The husband was cross-examined for a large part of the first day. In respect of the resolved parenting issue and the evidence given by the husband in respect of it, his Honour said at [9]:
Once the parenting issues were settled, I have proceeded as if the trial commenced again solely on the issue of property matters. Therefore, I have totally disregarded any views I had about the credibility of the husband based on the evidence that he gave in the parenting trial. I am of the view that there was no obligation on me to disregard such evidence but, nevertheless, I have proceeded in that manner.
In the paragraph of the reasons immediately preceding that paragraph his Honour said:
During the evidence of the husband, there was evidence given that, I felt, cast a dark shadow over the credibility of the husband. These issues were a claim by the husband that the children were treated for malnutrition in hospital and a further claim that the wife deliberately scratched herself to fabricate evidence of domestic violence. With respect to the latter claim, the husband said that he had a video recording of this action.
It is necessary to observe that, at the outset of the husband’s cross-examination, his Honour enquired as to the husband’s command of English. His Honour was told, and apparently accepted, that it was “very poor”, saying, in addressing the wife’s counsel, that “we’re going to have to probably read things out slowly to him”.[12] Although English was not, it seems, Mr Laham’s first language it appears to have been accepted that he had no difficulties with it.
[12] Transcript, 17 May 2016, p 20 ln 15 – 16.

The Respondent Wife’s Arguments

The Summary of Argument filed on behalf of the wife contends, by way of summary of matters earlier specifically addressed:[13]
Given:
a.the inconsistencies in the affidavit evidence sworn by [Mr Laham]; and
[13] Wife’s Summary of Argument filed on 8 September 2017 at paragraph 37.
b. the concessions made by him in cross examination, and
c.having regard to the failure by [Mr Laham] to comply with any of the trial directions that had been made in this matter,
it does not sit well for [Mr Laham] to now complain about the fact that he was asked the questions he was asked by the Judge in the manner that he does.
In oral argument, counsel for the wife advanced a similar proposition in answer to a question from the Bench:[14]
[14] Appeal transcript, 14 November 2017, p 71 ln 43 to p 72 ln 11.
MURPHY J: … So I understand the submission to be that this Court might come to the conclusion that his Honour went beyond that which might be regarded as merely clarifying points raised during cross-examination or matters of interest to his Honour arising from the evidence which he sought to clear up and understand properly.
…
MURPHY J: If he went beyond that … it should be regarded as immaterial because it did not prevent the husband or [Mr Laham] from presenting their case; therefore, no miscarriage of justice. Is that it?
[COUNSEL FOR THE WIFE]: It is. I don’t think I could sensibly stand up in front of you and suggest that his Honour didn’t ask questions which went beyond mere clarification. I think that much is clear from the transcript.
Shortly thereafter, counsel was taken to what Lord Brown had said in Michel v The Queen cited with approval in Royal Guardian:[15]
[15] Appeal transcript, 14 November 2017, p 72 ln 46 to p 73 ln 21.
MURPHY J: And then secondly, Lord Brown goes on to say:
And above all he must not make obvious to all his own profound disbelief in the defence being advanced.
Now, do you say that, looked at objectively, this Court could not conclude that his Honour made it obvious to all his profoundest belief [sic: profound disbelief] in the case being advanced?
[COUNSEL FOR THE WIFE]: It’s available to you to make that finding. I’m going to ask you to find that, for example, he was entitled to ask, as he did, “Well, is there an original of annexure A?” I’m going to ask you to accept that in the facts of this case, where documents were being produced throughout the entirety of the trial, it didn’t relieve his Honour of any of the obligations that he would normally have, but it might help inform some of the questions that he asked because everybody in this trial, including the judge, was deprived of what we normally have, and that is the opportunity to read and understand the case that we’re meeting within whatever period of time directions provide for.
And in that context, I say it’s available to the Court to find that his Honour didn’t go quite as far as what, for example, Lord Brown has – the citation from Michel & The Crown in Lord Brown. And there is the distinction which was touched on earlier in Michel & The Crown. That was being talked about in the context of a criminal law case, not a civil case…
Later in his oral submissions, counsel summarised his client’s position as follows:[16]
…if there were, what on the face of it, was excessive interference, it is still necessary to assess the degree to which that excessive interference departed from the judge’s traditional role and compromised the judicial capacity, and it is necessary to consider whether the intervention was unjustifiable and resulted in a miscarriage of justice. And I say that if that were right, then it would be proper to look at the balance of the evidence to see whether or not there has been a miscarriage of justice because those findings might be available to the judge for reasons other than his excessive involvement. But that – that requires you to accept the submissions that I’ve made in relation to – I said the wrong paragraphs before – that requires you to accept the submissions I’ve made about [paragraphs]167 and 169 of Royal Guardian.
[16] Appeal transcript, 14 November 2017, p 80 ln 42 to p 81 ln 4.

The reference to [167] and [169] of Royal Guardian is a reference to paragraphs within the reasons of Ward JA where her Honour is, in turn, referring to what was said by Kourakis CJ in R v T, WA.[17] Her Honour said:
[17] (2014) 118 SASR 382.
167.His Honour phrased the “dust of conflict ground” in terms of compromising the capacity of the judge to adjudicate on the basis that it could only ever be a matter of speculation for an appellate court as to whether a judicial officer’s vision was in fact “clouded by the dust of conflict”. His Honour said (at [39]):
... If the appeal court, on an appeal by way of rehearing, concludes that a judge’s findings were wrong in fact on the evidence, it may correct them without relying on the judge’s excessive judicial intervention. However, in those cases in which the facts, as found, were open to the trial judge, particularly given the judge’s advantage in assessing the credibility of the witnesses, it is impossible for an appeal court to say whether or not the judge’s finding in fact proceeded from a clouded, or clear headed, evaluation of the evidence. Moreover, because this ground, in effect, alleges an error of law which will generally result in a retrial irrespective of the appeal court’s view of the weight of the evidence, it is better based on an objective standard measured by an assessment of the degree to which the departure from a judge’s traditional role compromises the judicial capacity to objectively evaluate the evidence.
[Emphasis added by Ward JA]
168.At [40], Kourakis CJ acknowledged that many interventions will attract a consideration of both the bias and dust of conflict grounds but accepted that there would be some interventions which, even though they did not suggest pre-judgment, nevertheless showed that the judicial officer had lost the advantage of judicial detachment which he or she would otherwise have enjoyed as a judge adhering to the common law adversarial method of trial.
169.In this Court, the issue of judicial intervention was considered in Ellis v R [2015] NSWCCA 262 (Ellis). There, the Court (Bathurst CJ; R A Hulme and Garling JJ) noted the dangers resulting from excessive intrusion by a trial judge in adversarial proceedings as including the inability of a judge who has “descended into the arena” properly to assess the demeanour of a witness and the possibility of creating the impression of pre-judgment. The Court emphasised that the ultimate question is always whether the intervention was unjustifiable and resulted in a miscarriage of justice.
The concessions by counsel for the wife in the transcript passages earlier quoted were, with respect, appropriate. His arguments seek to emphasise parts of the passages in [167] and [169] so as to contend, in effect, that the primary judge’s interventions did not impact the ultimate findings which were, it is contended, otherwise available on the evidence before the primary judge.
We are, with respect, not persuaded that the premise for the argument is correct nor are we persuaded of the conclusion based upon that premise.
The expression “miscarriage of justice” used in the quoted passages extends beyond a description of the result. The miscarriage of justice referred to is a failure in the process leading to the result; “whether the excessive judicial questioning or perjorative [sic] comments have created a real danger that the trial was unfair”.[18] Further, “maintain[ing] the appearance of impartiality, by maintaining an appropriate degree of detachment, are essential aspects of [the primary judge’s] function as the officer presiding in the court”. Judicial intervention beyond that which is acceptable “may properly be characterised as a potential breach of procedural fairness, rather than a form of pre-judgment”.[19]
[18]Galea v Galea (1990) 19 NSWLR 263 (“Galea”) at 281 (Kirby A-CJ; Meagher JA agreeing).
[19] Royal Guardian at, respectively, [18] and [20] (Basten JA) the latter paragraph citing RPS v The Queen (2000) 199 CLR 620.
Importantly, Ward JA, subsequent to the passages relied upon by counsel, went on to say:
171.Finally, I note that in [Michel v The Queen], Lord Brown, delivering judgment for the Privy Council, identified the ways in which judicial intervention might lead to a miscarriage of justice as including not only interventions that prevent counsel from properly presenting the case but also interventions that prevent the relevant party (there, the defendant) from doing himself or herself justice in the giving of his or her evidence; as well as interventions that deny the basic right underlying the adversarial system of trial, namely that of having an impartial judge to see fair play in the conduct of the case. Lord Brown noted (at [31]) that “[t]he core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials”.
172.Lord Brown acknowledged that the judicial officer could properly “clear up ambiguities” and “clarify the answers being given” but said (at [34]) that:
... he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses, especially not during evidence-in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.

The Nature, Extent And Form Of The Interventions

Overarching Considerations

The arguments advanced on behalf of both Mr Laham and the husband refer to the primary judge’s questioning of each as “cross-examination”. It should be accepted that the expression is used with an intended rhetorical flourish. We have carefully read the specific interventions referred to in written and oral argument. We consider the expression apt to describe the nature and tone of his Honour’s questioning.
The “number, length, terms and circumstances of the interventions” are important considerations.[20] The impugned interventions came at critical points in the cross-examination of the husband and Mr Laham. They were directed to the central factual issue in the case. Moreover, they were directed to an issue (that is, whether the husband and Mr Laham had concocted the existence of a loan so as to perpetrate a “fraud on the court”) in respect of which, because of the “gravity of the matters alleged” required a careful evaluation of the evidence[21] and, in this case, a careful assessment of the veracity and reliability of the evidence of Mr Laham and the husband.
[20] Galea at 281 (Kirby A-CJ; Meagher JA agreeing).
[21] Evidence Act 1995 (Cth) s 140(1) and (2)(c); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170 – 171 (Mason CJ, Brennan, Deane and Gaudron JJ) and WK v SR (1997) FLC 92-787 at 84,691; 84,693; 84,694.
Those factors rendered it particularly important in the circumstances of this case that each of the husband and Mr Laham be afforded the opportunity to properly present their respective cases and, conversely, that the primary judge remain aloof from the conflict and that he not depart “from the role of a judge presiding over an adversarial trial” so as to “unduly [compromise] the judge’s advantage in objectively evaluating the evidence from a detached distance”.[22] So, too, those factors and the husband’s difficulties with English rendered it particularly important in the circumstances of this case that each of the husband and Mr Laham not be prevented from doing themselves “justice in the giving of [their] evidence”.[23]
[22] R v T, WA (2014) 118 SASR 382 at [38] (Kourakis CJ).
[23]Royal Guardian at [171] (Ward JA) citing Michel v The Queen.

Mr Laham’s Affidavits and the Inconsistency

The first of the matters grouped by counsel for Mr Laham quoted above requires some explanation.
The trial commenced before his Honour in May 2016. A relevant affidavit was filed by Mr Laham in September 2015 in which he had sworn to both the husband and the wife knowing of “the liability to me and of my claim in respect of equity in the properties”.[24] That affidavit had been prepared by the husband’s solicitors. Approximately one week prior to trial, Mr Laham instructed solicitors who prepared a further affidavit which was filed by leave on the first day of trial.
[24] Mr Laham’s affidavit filed on 14 September 2015 at paragraph 7.
In the latter affidavit, Mr Laham deposed, apparently inconsistent with his earlier affidavit, that he had “never spoken to [the wife] about the loans owing to [him] by her husband as [he] did not consider that to be an appropriate thing to discuss with her”.[25] Leave was given to Mr Laham to give oral evidence‑in-chief during the course of which his counsel asked for him to be shown his 2015 affidavit. Counsel then asked “whether he wishes to say anything about [any] paragraphs of” his earlier affidavit. His Honour did not permit him to do so.[26]
[25] Mr Laham’s affidavit filed by leave on 17 May 2016 at paragraph 6.
[26] Transcript, 19 May 2016, p 231 ln 27 – 29.
It is unclear whether counsel sought to challenge that ruling as part of a broader complaint as to questioning by his Honour which later followed. We should say we can see no error in his Honour’s ruling. Despite the apparently innocuous and non-leading nature of the question, we consider its sole purpose was to permit Mr Laham to give self-serving evidence. His Honour was in our view correct to leave any such questions to cross-examination and, if appropriate, reply.
That said, we do not understand the gravamen of the challenge to be dependent upon the correctness or otherwise of any such ruling. Understandably enough, counsel for the wife explored the apparently inconsistent statements in his cross‑examination of Mr Laham and put to him that he had given intentionally false evidence in the earlier affidavit because “it served your own financial purposes” to have the loan owed by both the husband and the wife.[27] Immediately thereafter, his Honour cross-examined Mr Laham about the very same topic, including repeating questions which Mr Laham had answered to the wife’s counsel. His Honour asked specifically whether Mr Laham “knew that what you were saying was that that was the truth, and [the witness to the affidavit] was going to witness that you had said that everything that is in here is the truth”.[28]
[27] Transcript, 20 May 2016, p 300 ln 31 – 32.
[28] Transcript, 20 May 2016, p 302 ln 6 – 8.
That cross-examination by his Honour came on top of cross-examination by his Honour on the same topic the previous day:[29]
[29] Transcript, 19 May 2016, p 241 ln 8 – 39.
[HIS HONOUR]: But you never spoke to [the wife] about this, did you?---No. I never - - -
She never came to you and said, “Oh, thank you so much, Mr - - -”?---As far as - - -
“[Mr Laham], for everything you’ve done for us”?---That’s right. The finance of business concern with [the husband], nothing was discussed with her.
Yes?---Few times we would – at the school fete or something, if to meet, I just used to greet her.
Yes?---I would see her children ..... and then one day, I think one – two or three years ago is fete, I showed her my grandchildren.
Yes?---And she want commented to her son who said imam is a very wealthy man.
Yes?---I distinctly remember that.
Yes. Well, but the thing is, she never said to you, “Thank you so much for your generosity”?---No, I never discussed anything with her.
Okay. All right. Yes. But that’s the thing, you see, even though you had given what you thought was 350,000 - - -?---Right.
- - - in all those times that you saw her, she never once said, “thank you very much”?---You must remember, in our culture, most of the time the wives, they don’t even know what’s happening in the business. If you come and – if you go and ask my wife what I’m worth, she wouldn’t even know.
Yes?---You understand?
So that’s the thing. You wouldn’t be surprised at all if [the husband] never said a word to [the wife] about this?---I wouldn’t be surprised.
The questions asked by his Honour the following day about the earlier affidavit which we have earlier quoted were succeeded by further cross‑examination by his Honour during which he returned to the issue of the earlier affidavit:[30]
All right. Now, that paragraph number 7 in that affidavit that you’ve been given?---Yes.
Now when you look at it, what it means, is that true?---Well, I don’t think – I’m not sure whether the wife knew or not.
Okay?---But I – because when they told me the property was joint and all that and this thing, so – and then they said, “Well, what parties will be responsible and all that for the money?”, so that’s when they made this affidavit, and, you know, I went along with them.
So what – okay. Is this fair that when you read that you thought that what it meant was that both parties would be liable for the money?---Yes. Because the property was joint, on the joint name, and that was the biggest asset they had.
Yes. But the thing is you don’t know what he was – in effect, whatever he said he was going to do with the money, yes, you just accepted that. He might have been doing something totally different. You weren’t going to stand over his shoulder and watch what he was doing?---Yes.
Is that right?---Yes.
[30] Transcript, 20 May 2016, p 303 ln 42 to p 304 ln 15.
There can be little doubt that the questions asked by his Honour were designed to impugn Mr Laham’s credit and all the more so when they are read with his Honour’s cross-examination of the same witness the previous day. While we consider, with respect, that his Honour was correct to deny Mr Laham the opportunity to bolster his own credit in evidence-in-chief, it was unfair for his Honour to conduct a cross-examination of him designed to impugn that credit by asking leading questions which both suggested a view that his Honour had taken of the evidence (and, it would seem clear, a view he had taken of the witness’s credit). To repeat, that finding was crucial to a central and grave factual finding.
As has been said, “‘the demeanour of a witness is apt to be very different when he is being questioned by a judge from what it is when he is being questioned by counsel’”.[31] Interventions can lead to a miscarriage of justice because, among other concerns, they prevent a party “from doing himself or herself justice in the giving of his or her evidence”.[32] We have that very concern.
[31] Royal Guardian at [18] (Basten JA) quoting Lord Greene MR in Yuill v Yuill [1945] P 15 at 20.
[32] Royal Guardian at [171] (Ward JA) citing Lord Brown in Michel v The Queen.

Excessive Intervention, Cross-Examination and Other Issues

The remaining groupings of complaints on behalf of Mr Laham and adopted by the husband can be dealt with together.
Two questions after the cross-examination of Mr Laham by counsel for the wife commenced, this exchange occurred:[33]
[COUNSEL FOR THE WIFE]: So from that answer, does that mean you had some – you obviously had some sort of conversation with [the solicitor for the husband]; is that right?---I had conversation with him.
But he wasn’t – sorry?---He never send me a bill for that.
Right?---And I never sign - - -
HIS HONOUR: He didn’t send you a bill?---No.
You are happy about that, are you?
[33] Transcript, 19 May 2016, p 236 ln 41 to p 237 ln 3.
We are unable to see any purpose of his Honour’s question, including by reference to the context which precedes it and succeeds it, save for sarcasm.
As will been seen, his Honour questioned Mr Laham as to the whereabouts of the original of a document, a copy of which was annexure “A” to his affidavit filed by leave on the first morning of trial. Annexure “A” was a piece of paper on which was set out details of Mr Laham’s claimed debt and interest. Counsel for the wife having introduced the topic, Mr Laham was cross‑examined by his Honour for about the next seven pages of transcript.[34] Counsel for the wife did not ask a question during that period.
[34] Transcript, 19 May 2016, p 239 ln 26 to p 246 ln 5.
Respectfully, on no view could the “cross-examination” be seen as merely clarifying evidence or seeking to understand better the evidence that was being given.
The assessment of Mr Laham’s credit, and that of the husband, depended upon, among other things, an assessment of their demeanour. The extent of his Honour’s questions to Mr Laham and the topic of those questions highlights the fact that “pressure from the judge (even if not consciously applied) may result in a witness making concessions which would otherwise not have been made”.[35]
[35]Royal Guardian at [19] (Basten JA) referring to Vanstone J in Lockwood v Police (2010) 107 SASR 237 at [16].
We are unable to see how the cross-examination by his Honour had any purpose other than seeking to impugn the credit of Mr Laham. The same is equally true of “cross-examination” of the husband by his Honour.
Approximately four pages later in the transcript after the passages of cross‑examination by his Honour to which we have already referred, his Honour again took up the cross-examination of Mr Laham. At this point counsel for the husband objected:[36]
[COUNSEL FOR THE HUSBAND]:         Could I interrupt, your Honour.
HIS HONOUR:         Yes.
[COUNSEL FOR THE HUSBAND]:         I do wish to object. Your Honour, I think your Honour, respectfully, is entering the fray. I don’t have the authority - - -
HIS HONOUR:         Well, the – okay. You make your submissions.
[36] Transcript, 19 May 2016, p 251 ln 22 – 29.
In response to counsel’s submissions his Honour said he was asking questions “because no-one’s asking them”. Counsel responded, with respect accurately and pertinently, that counsel for the wife had “not yet finished his cross‑examination”. His Honour said:[37]
…I don’t believe I’ve entered the frae [sic]. I’m not going for any particular side. I’m trying to get at what has actually happened here because it is a clear as mud as to what has happened. I’m looking all [sic] the affidavits. I’m looking at everything that you’ve said and it does not seem as though anything has looked at how did any of this actually happen? And no-one’s asking those questions and it’s – if I need to know these things, then I have to end up asking them. Now, you know, that’s part of what I have to do. I know that you may think, well, look, the judge is asking all these questions. But it’s not – you enter the fray - - -
[COUNSEL FOR THE HUSBAND]:         I’m not concerned about any of your Honour’s questions.
HIS HONOUR:        You enter the fray if it is that you’re, sort of, as it were, going for one particular thing or the other particular matter where it is that the sorts of questions can somehow evince some form of bias or, as it were, trying to look at one particular matter. That’s not what’s happening here. I’m trying to find out what is this all about because it just doesn’t seem to have the sorts of continuity and explanation that one would have expected. That’s all. Now, I’m sorry if I’m asking too many questions for your liking, but - - -
[COUNSEL FOR THE HUSBAND]:         I didn’t say that, your Honour. And that is your Honour expressing a view about why I’ve objected. But respectfully, [counsel for the wife] should be allowed to conduct his cross-examination in the usual way and your Honour should not take it upon himself to conduct it for him.
[37] Transcript, 19 May 2016, p 252 ln 5 – 28.
We respectfully disagree with his Honour; in our view it is plain that his Honour had indeed “entered the fray”.
Further, the passage quoted suggests, respectfully, confusion on the part of his Honour between, on the one hand, an assertion of ostensible bias by reference to the nature and the extent of questioning and, on the other hand, procedural unfairness effected by the same. As pointed out in Royal Guardian, the High Court in RPS v The Queen[38] said:
But these are not complaints of bias or the appearance of bias; they amount to a complaint that the conduct of the trial was unfair. That is a radically different complaint and it is wrong to seek to apply tests developed in connection with questions of apparent bias in deciding whether the trial was fair. That question will turn largely on whether the accused has had a proper opportunity to advance his or her defence to the charge.
[38] (2000) 199 CLR 620 at 625, referred to by Basten JA in Royal Guardian at [20].

We also agree with the submission that, by reference to the nature and extent of his questioning, his Honour saw his role as being, in effect, inquisitorial. As authority makes clear, it was not. The primary judge’s obligation is to “promote the orderly elicitation of the evidence, not needlessly interrupting its flow”.[39] The passages from Lord Brown’s judgment in Michel v The Queen pertain. In our respectful view, his Honour’s intervention did in fact interrupt the flow which is, as we understand it, effectively the point being made by the husband’s counsel in making his objection and submissions earlier quoted.
[39] Michel v The Queen at [34] (Lord Brown), cited by Ward JA in Royal Guardian at [172].
In the cross-examination of the husband, his Honour and counsel for the wife interchangeably asked questions as to the documentation, or lack of documentation, of the alleged loans, including the manner in which they were kept, or not kept in any books of account of the husband’s business. We consider the description given by counsel for Mr Laham in his Summary of Argument of his Honour and counsel for the wife “tag-teaming”[40] in asking questions to be an accurate one.
[40] Apparently adopting the expression used in Royal Guardian.
In respect of the issue just described, the tag-teaming occurred over a number of pages of transcript before his Honour asked a page and a half of questions.[41] After an exchange with counsel for the husband and a few questions being asked by counsel for the wife, the cross-examination by his Honour resumed and “tag‑teamed” with counsel for the wife over the next five pages of transcript.[42]
[41] Transcript, 18 May 2016, pp 103 – 104.
[42] Transcript, 18 May 2016, pp 105 – 112.
The following day, his Honour’s questioning of Mr Laham on the important topic of the nature and timing of any documentation of the alleged loans resumed. We think it important to quote a portion of that transcript exemplifying the issues to which we have made reference:[43]
[43] Transcript, 19 May 2016, p 238 ln 46 to p 241 ln 39.
HIS HONOUR:        Yes. I would be interested to see the – you, know, that’s why I need to see the original document, I would think, and the original document should be on – should be the – should be on the affidavits. Why was a copy annexed and not the original, [counsel]?
[COUNSEL FOR MR LAHAM]:    Well, I understood that was the normal way of doing things, your Honour, but I’ve got the document that was copied to - - -
HIS HONOUR:        Who told you that that’s the normal way of doing things, [counsel]?
[COUNSEL FOR MR LAHAM]:    The original - - -
HIS HONOUR:        Yes. The original is not produced to a court.
[COUNSEL FOR MR LAHAM]:    Well, I have a document which I could – I understand a copy was taken from which I can produce, your Honour.
HIS HONOUR:        Is it the original of this document?
[COUNSEL FOR MR LAHAM]:    No. It’s not. It’s a copy of the document.
HIS HONOUR:        Well, where’s the original?
[COUNSEL FOR MR LAHAM]:    I don’t have it, your Honour, and Mr Laham’s evidence is that he thinks he gave it to [the husband].
HIS HONOUR:        Well, [the husband] hasn’t got it, because he didn’t produce it, so there are a number of things. You say that this is a document that was produced over the course of 15 months?---Yes. What happened – the reason I had – and every time I should write down as ..... cheques were given to him and then when anything was done then I made a photocopy for my records and I gave the original to [the husband].
Yes. But, I mean, I’m saying you had a piece of paper so – you had a piece of paper. Every time you loan him some money - - -?---Yes.
- - you just would write it down on a piece of paper - - -?---Yes. Yes.
- - - and keep it and then when you would write – do the next bit?---Next one – yes.
You would write it down again?---Yes.
But on this piece of paper, where is it that you would know that this relates to [the husband]?---Because I know I gave the money to [the husband].
Yes. I know but, I mean, this is for your records?---Yes.
How is it, you know – if you’ve got records and it’s sort of everywhere?---Yes.
How do you know that that’s for [the husband]?---Because when I was making those cheques, I knew he – this is for [the husband].
Well, I know you do that, but, I mean, if you were writing a record - - -?---Yes.
And someone says, “Prove to me that that is - - -?---Yes.
For [the husband] - - -?---Yes.
He would say, “Yes. I’ve done it because, look, when I wrote it, I had it there and it said, ‘[the husband]’ and if you go to the cheque, I will give you the cheque and I will give you the cheque butt, and I will do all of those sorts of things - - -?---Right.
- - - to show – I don’t see any of that?---Right.
Why don’t I see any of that?---When he came, I had this piece of paper and every time he came out, write down, this, this, this paper, you know.
Yes?---And that was for my records. So when everything was done then I kept a photocopy for myself and I give the original to him. So that - - -
So you gave him the original in 2006?---When this thing was – when everything was complete, yes.
So in 2006 you had already given him the original?---Yes, because I knew I had been – I mean, it was not like a formal type of loan that we sign a loan agreement and that – it was on friendly terms. I knew him very well. So I said, “Okay, I’m prepared to help you and I’ll give you this loan in stages”.
Yes. So you’ve done this each time he would come or you would give him something?---Yes.
You would pull out this piece of paper, you would write it down?---Yes.
Okay. You see, this is why we need to look at the original because, you see, if you look at the original it becomes actually fairly easy to see whether things were written at different times?---Right.
Okay? And that’s why, you know, when you just give me a photocopy, it doesn’t mean much to me. Okay? That’s our - - -?---Yes.
That how we show that things are different, because you can see easily, on something like this?---Right.
That’s why we need to look at the originals. So you say you haven’t seen the original - - -?---Not .....
- - - since 2006?---No, I haven’t seen because I’m – nobody I knew said it would come to this stage, you understand? I never in my wildest dreams thought it would come to this stage because initially both of them are so happy. I see them so much, you see them with their children.
Yes. I mean – well, that’s what you say?---Yes.
There then follows the exchange we have quoted at [37] of these reasons.
Again, his Honour comments on the evidence being given with the expression, “well, that’s what you say” – an expression which we can see as having no purpose other than to indicate that the judge is throwing doubt on the evidence being given. Again, what Lord Brown said in Michel v The Queen, cited with approval by Basten JA in Royal Guardian, which we have earlier quoted, pertains.
We also agree with the submission that, in asking questions of the husband and Mr Laham in the nature of cross-examination, his Honour frequently asked two or more questions in one which, emanating from counsel, would have been objectionable. Examples include:[44]
[HIS HONOUR:] Why are you recording the cheque number if it is that you say, “Well, I could trust him anyway”? Why do you have to do that?---No, because I write the cheque number there in case there’s ever a query from [the husband], then I can say, “By this cheque, this cheque, this cheque I paid you”.
But why would there be that? You trusted him, you said to me?---Yes, I know I’ve trusted him, but in this - - -
But you didn’t trust him that much?---For my records I know that’s okay how I had paid.
Okay. So you’ve got this – you’ve got the cheques and you’ve done things that way, so these are all cheques. So you don’t know what the – why you’ve written the word “deposit”, you don’t know what the word – what the number 18158 means, or 18161, or 24801, of “letterhead”?---Yes. I can’t - - -
You don’t know any of those?---No, I can’t remember. I can’t recollect. It’s 2006.
You see, because then- - -?---And as you get older, your grey matter starts to degenerate.
…
[HIS HONOUR:] We know that the board ended up accepting this. We want to know what is the time. What happened first, you know? Did you give him money before he put in the tender for the board? Did you give him money after he tendered money for the board? These are the things that we need to know?--- Yes …..
[44] Transcript, 19 May 2016, p 243 ln 25 – 9; transcript, 20 May 2016, p 295 ln 6 – 9.
As we have earlier pointed out, one danger of judicial intervention identified in Royal Guardian[45] is that even if judicial pressure is not “consciously applied”, it might nevertheless result “in a witness making concessions which would otherwise not have been made”. An added difficulty is that it may “not readily be assessable, especially by the judge who obtained it” whether the concession would have otherwise been made.[46] Again, we consider that to have occurred here. The following exchange took place when Mr Laham was being questioned by his Honour:[47]
[45] At [19] (Basten JA) citing Vanstone J in Lockwood v Police.
[46] At [19] (Basten JA).
[47] Transcript, 19 May 2016, p 244 ln 1 – 46.
[HIS HONOUR:]      Okay. Now, you say that you did this.
[COUNSEL FOR MR LAHAM]:    No, he didn’t. I object, your Honour. That’s not - - -
HIS HONOUR:         Yes, he did.
THE WITNESS:       No.
[COUNSEL FOR MR LAHAM]:              No, he didn’t.
HIS HONOUR:         He said that his nephew did that on the MYOB for him.
THE WITNESS:       Yes, my - - -
[COUNSEL FOR MR LAHAM]:              His nephew did it, yes.
HIS HONOUR:         And that he signed it.
THE WITNESS:       Yes, I signed it.
HIS HONOUR:         Yes?--- My nephew prepared it on MYOB.
Yes, yes. That’s what you said. Did I say something wrong?
[COUNSEL FOR MR LAHAM]:              You said, “You did it”. I think your Honour – “Your nephew did it at your instruction”.
HIS HONOUR:         Yes, that’s what I said.
[COUNSEL FOR THE HUSBAND]:         No, you didn’t.
[COUNSEL FOR MR LAHAM]:              Yes, your Honour.
HIS HONOUR:         What, I didn’t say that?
[COUNSEL FOR THE HUSBAND]:         Not initially, no, you didn’t.
HIS HONOUR:         [Mr Laham]?--- Yes.
You see the thing that says “details” on that exhibit 1?---Yes.
Why have you got the numbers 18158, 18161, 240801? Why are they – what details are they?---I just cannot – I cannot recollect. I was – you want my solicitor ask me and I was trying to think and think. I just cannot recollect.
Okay. But you did this. You told your nephew to do this?---Yes.
This confusing exchange, all occurring while the witness was present in the witness box, resulted ultimately in two (with respect confusing) questions in one being put to Mr Laham and immediately thereafter two conflicting propositions being put. The latter resulted in a concession which, as a result of the conflicting propositions inherent in the question was, in any event, meaningless.

Summary And Conclusion

“Appellate challenges to trial judgments, based on complaints of excessive intervention by the trial judge in the course of the hearing are never easy to evaluate”.[48]
[48]Royal Guardian at [14] (Basten JA).
We have sought to pay due regard to the fact that selected references to the transcript need to be read in the context of the whole of the transcript and the reasons lest an inaccurate impression be formed. We have read both.
We are also conscious that some parts of the transcript reveal questioning by his Honour which sought to clarify evidence or sought to have each witness concentrate on the questions being asked and to limit dissembling. Each of those interventions are, of course, a proper part of the judge’s role; they seek to elicit the orderly flow of the evidence and seek to engender an environment by which the evidence given and the demeanour with which it is given can provide the best possible guide to assessing the reliability and credibility of that evidence.
Yet, against the background of those factors, and accepting that complaints of the instant type are never easy to evaluate, our reading of the impugned interventions seen in the context of the transcript and reasons as a whole, firmly persuades us of procedural unfairness as explained in the authorities to which we have referred.
We are persuaded that, as counsel for Mr Laham contends and in which counsel for the husband joins that:
·His Honour’s central finding of dishonesty summarised at [80] of the reasons was based in large part on the primary judge’s own questioning of each of the husband and Mr Laham, particularly the latter;
·His Honour “descended into the arena” and, as a consequence, compromised his capacity to “properly assess the demeanour of [those two witnesses] and … creat[ed] the impression of pre‑judgement”;[49]
·Respectfully adapting the description given by Ward JA of the interventions in Royal Guardian, his Honour:[50]
… commented on the evidence of [each of those two witnesses] while it was being given, and, if not displaying “profound disbelief”, on paper he certainly seems at times to have displayed a degree of scepticism of the evidence given by [both witnesses].
·Each of the husband and Mr Laham, and particularly the latter, was again as Ward JA put it, “subjected to what amounted to extensive cross‑examination by the primary judge”;[51]
·His Honour “adopted the mantle of advocate” such that “the proceeding became, to a significant extent, an inquisitorial hearing”;[52]
·We agree that it is accurate to describe passages of the evidence of each of the husband and Mr Laham as his Honour “taking over” the cross‑examination of the witness and, in other cases, “tag-teaming” with counsel for the wife in asking questions;[53] and
·His Honour commented on the evidence and expressed scepticism in respect of the evidence as it was being given. Some expressions used by his Honour (for example “that’s what you say” earlier referred to) reinforced such an impression.
[49] Cf Ellis v The Queen [2015] NSWCCA 262 at [57]; Royal Guardian at [169] (Ward JA).
[50] Royal Guardian at [226].
[51]Royal Guardian at [228].
[52] Royal Guardian at [219] (Ward JA).
[53] In using that expression, we are not at all suggesting that counsel sought or encouraged any such approach. Indeed we respectfully consider the opposite to be the case.
We conclude that the nature of the primary judge’s interventions and their purpose, tone and frequency are demonstrative of procedural unfairness.
The result is that his Honour’s orders should be set aside and the proceedings remitted to the Federal Circuit Court of Australia to be heard by a judge other than Judge Vasta.

Apprehended Bias?

As we have earlier said, consistent with authority we will not proceed to consider the other grounds of each appellant’s appeal save to very briefly consider the husband’s related challenge that his Honour was ostensibly biased.
The husband’s Summary of Argument “relies upon the trial judge’s conduct highlighted in the submissions relating to procedural unfairness on the basis that such conduct does give rise to a reasonable apprehension of bias”.[54] The husband’s submissions proceed to identify a number of specific paragraphs of the reasons so as to contend that, in conjunction with the nature and extent of his Honour’s interventions earlier discussed, his Honour can be seen to not bring an impartial mind to the “significant credit issue” at the heart of the case, namely the honesty of the claimed loan and consequent indebtedness.
[54] Husband’s Summary of Argument filed 31 July 2017 at paragraph 6 earlier citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 (Gleeson CJ, McHugh, Gummow and Hayne JJ).
The passages touch on factual findings which form part of other grounds of appeal and factual issues which are likely to loom large on the rehearing. Their general theme is that conclusions of dishonesty are drawn with either no factual foundation or from an insufficient factual foundation.
In broad terms the assertion of bias uses those assertions together with the nature and extent of his Honour’s interventions and relates them to what are asserted to be the passages of the reasons that they are said to have informed. It is said, that, when taken together, the requisite apprehension by the reasonable and intelligent lay observer[55] is manifest.
[55] Vakauta v Kelly (1989) 167 CLR 568 at 572 (Brennan, Deane and Gaudron JJ).
While objection was taken to his Honour’s interventions,[56] his Honour was not asked to recuse himself.
[56] Noting that same is not required to sustain a claim of procedural unfairness: Royal Guardian at [24]ff (Basten JA); at [250]ff (Ward JA).
Counsel’s reliance upon statements in the reasons presumably seeks to invoke what was said by the High Court in Vakauta v Kelly[57] by which the failure to raise the issue of bias and recusal during the proceedings which is commonly fatal to an appeal, might in some cases be overcome.
[57] (1989) 167 CLR 568 at 573 (Brennan, Deane and Gaudron JJ).
We are not persuaded that what his Honour said in the reasons is of the same character as what was discussed in Vakauta v Kelly. We consider the circumstances here plainly distinguishable and, by reference to what was said in that case, the failure to raise the issue of bias and seek his Honour’s recusal militates strongly against the success of any such claim before this Court.
However, for the reasons we have earlier given, we are persuaded that the husband was also the subject of procedural unfairness and his appeal should succeed accordingly.

Result Of The Appeal

Each appeal is allowed. The orders of Judge Vasta will be set aside.
The proceedings will be remitted for rehearing in the Federal Circuit Court of Australia by a judge other than Judge Vasta.

Costs Of The Appeal

For reasons advanced at the hearing of the appeal, we indicated that we would provide the opportunity for each of the parties to file short written submissions as to costs.
In case there should be any doubt on the part of either of the parties or Mr Laham, it should be appreciated, including in respect of any submissions made in respect of the costs of the appeal, that our conclusions as to procedural unfairness should not be seen as a vindication of the husband’s or Mr Laham’s position with respect to the factual issues live in the proceedings below.
Nor should our decision or reasons be seen as a comment, favourable or otherwise, on the veracity and reliability of their evidence. Each will undoubtedly be live issues on the rehearing.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy and Kent JJ) delivered on 10 May 2018.

Associate:

Date: 10 May 2018