Jacob and Barker (No 2)
[2010] FamCAFC 264
•22 December 2010
FAMILY COURT OF AUSTRALIA
| JACOB & BARKER (NO. 2) | [2010] FamCAFC 264 |
| FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – receipt of affidavit filed by the father – substantial parts of affidavit struck out – preparation of appeal for hearing. FAMILY LAW - APPEAL – DISQUALIFICATION – oral application by the father seeking the judge’s disqualification on the basis of bias and pre-judgment – application dismissed. |
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Re JRL; Ex parte CJL (1986) 161 CLR 342 |
| APPELANT: | Mr Jacob |
| RESPONDENT: | Ms Barker |
| FILE NUMBER: | ADC | 2344 | of | 2009 |
| APPEAL NUMBER: | SA | 69 | of | 2010 |
| DATE DELIVERED: | 22 December 2010 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 22 December 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 25 August 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 1134 & [2010] FMCAfam 1159 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Hurley |
| SOLICITOR FOR THE RESPONDENT: | Holding Redlich |
Orders
UPON NOTING that the Notice of Appeal filed by the father on 22 September 2010 is only against order 1 made by Federal Magistrate Lindsay on 25 August 2010
AND UPON FURTHER NOTING that the father has tendered an affidavit in purported compliance with the order made on 14 December 2010 and that the same has been received for filing but with substantial parts of the affidavit and the annexures thereto struck out as marked as irrelevant or inappropriate and non-responsive to the order made
The father’s oral application seeking that Justice Strickland be disqualified is dismissed.
The documents to be before the Court for the purposes of the appeal are as follows:
a.Notice of Appeal filed on 22 September 2010;
b.Order made by Federal Magistrate Lindsay on 25 August 2010;
c.Reasons for judgment of Federal Magistrate Lindsay dated 25 August 2010
d.Amended application filed by the mother on 10 February 2010;
e.Affidavit of the mother filed 10 February 2010;
f.Orders made on 10 February 2010;
g.Reasons for judgment of Federal Magistrate Lindsay dated 10 February 2010;
h.Application in a Case filed by the mother on 24 February 2010;
i.Affidavit of the mother filed on 24 February 2010;
j.Affidavit of the father filed on 1 March 2010;
k.Affidavit of the father filed on 24 March 2010;
l.Orders made on 26 March 2010;
m.Reasons for judgment of Federal Magistrate Lindsay dated 26 March 2010;
n.Orders made on 31 March 2010;
o.Reasons for judgment of Federal Magistrate Lindsay dated 31 March 2010;
p.Transcript of the hearings on 10 February 2010, 26 March 2010, 31 March 2010 and 25 August 2010.
The father obtain the transcript of the hearings on 10 February 2010, 26 March 2010, 31 March 2010 and 25 August 2010 and provide copies thereof to the Court and to the respondent by close of business on Friday 28 January 2011.
The father file and serve a written summary of argument and list of authorities (if any) by close of business on Friday 28 January 2011.
The mother file and serve a written summary of argument and list of authorities (if any) by close of business on Friday 18 February 2011.
The father file and serve any application to lead further evidence, together with any affidavit in support thereof, by close of business on Friday 28 January 2011.
The mother file and serve any application to lead further evidence, together with any affidavit in support thereof, by close of business on Friday 18 February 2011.
The Notice of Appeal be listed for hearing before the Honourable Justice Strickland commencing at 10:00am on Friday 25 February 2011 with a time estimate of half a day.
The mother’s costs of and incidental to the hearings on 23 November 2010, 14 December 2010 and today be reserved to the adjourned hearing date.
IT IS NOTED that publication of this judgment under the pseudonym Jacob & Barker (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 69 of 2010
File Number: ADC 2344 of 2009
| Mr Jacob |
Appellant
And
| Ms Barker |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
For a substantial period of time, albeit it his own appeal, Mr Jacob has consistently sought an adjournment of this appeal primarily, as he has said, to obtain legal representation and present proper documentation. I have refused to grant the adjournments that he has sought to date. Reluctantly, though I have had to adjourn the appeal on two occasions for shorter periods of time than Mr Jacob has sought.
Thus, I do not propose to take what would be the appropriate course of not permitting the filing of this affidavit and adjourning it for Mr Jacob to file an appropriate affidavit because it seems to me that would defeat the purpose of determining this appeal within a reasonable time frame. Thus again, reluctantly, but in the interests, as I say, of moving this matter along I propose to receive this affidavit, but not all of it, because substantial parts of it, in my view, are irrelevant.
My order of 14 December 2010 was quite specific and the topics of the affidavit were well known. They were canvassed on the last occasion and paragraph 2 of the order provided:
… the appellant file and serve an affidavit dealing with his attempts to obtain legal representation -
That is the first topic -
and annexing all relevant correspondence in relation thereto.
That is part of that first topic.
And the second topic:
… also addressing the issue of obtaining the relevant transcript to enable this appeal to proceed and annexing any relevant correspondence in relation thereto.
Thus there were only two topics to be the subject of this affidavit; yet the affidavit roams far and wide across a number of other issues.
Looking at the affidavit, the first heading is, “Circumstances pertaining to this appeal”. That has marginal relevance to the topics in the order, and thus I will leave in paragraphs 4 through 11, save and except paragraph 8, which is completely irrelevant to the issues, and which I will strike out.
The next heading is “What my appeal is about”. I am not prepared to receive any of the paragraphs under that heading. That is simply not something that I directed be included in an affidavit. Thus I strike out all of the paragraphs under that heading.
The next heading is “The first appeal”. That is completely irrelevant and, in any event, was not the subject of any direction that I made on 14 December 2010. Thus I strike out all of the paragraphs under that particular heading.
The next heading, “Strickland J. disqualify himself from this hearing”. That, of course, was not to be the topic of an affidavit, but I will receive that part of the affidavit because today Mr Jacob wishes to make an oral application for me to disqualify myself. And again, rather than take what is the appropriate course, and which Mr Jacob well knows is the appropriate course, because I told him on the previous occasion that if he wished to proceed with an application to disqualify me, he should do it in the formal way. I will not adjourn this case. I am not intending to play into his hands by adjourning this case to enable him to prepare the proper documentation seeking my disqualification. Thus I am prepared, reluctantly, but in the interests again of moving this matter along, to receive that part of the affidavit which comprises paragraphs 29 through to 40 inclusive. I might say that I will come back to that, because not all of what is there is relevant or necessary to be considered.
The next heading, “Deputy Chief Justice Faulks’ published comments” is completely and totally irrelevant to the topics of the affidavit which I directed be filed. Thus, I do not receive any of the paragraphs under that heading and I strike them out.
The next heading, “Legal representation” is prima facie in line with one of the two topics that I referred to in my order. However, not all of it is relevant. It matters not to me in terms of how I address this issue as to what happened on 10 February 2010 or 19 February 2010. For the moment though I am leaving in all of what is under that heading.
The next topic and I think the final one is “Transcript”. Prima facie it might be said that that is a topic which I directed be included in an affidavit but, in fact, it is not. I propose to leave it in though because it was the subject of submissions. Indeed, I sighted, as did Ms Hurley, email correspondence in relation to the obtaining of transcript. But why I say it is not relevant and that I will be taking no notice of it today is that what my order was directed to was the issue of obtaining the relevant transcript for the purposes of the appeal.
This is an appeal against certain orders, nothing more, nothing less. The hearing dates identified in the Federal Magistrate’s reasons are 25 August and 31 March. It is the transcript for those hearing dates that are relevant. None of the other transcript which Mr Jacob has referred to in this section is relevant whatsoever to that topic.
And finally – it is not under a heading, it is just tacked on the end, I assume, because it is a most recent event - is paragraph 88 which deals with what happened at the family conference so described on 20 December 2010. Again, it is irrelevant for the purposes of this appeal and I disregard it entirely.
The next matter I need to deal with which will also, unfortunately, hold up the progress of this matter is an oral application made by Mr Jacob that I disqualify myself. Mr Jacob originally raised this in his submissions before me on 23 November 2010, when he suggested that there might be reason for me to disqualify myself. I indicated at that time what was obvious, namely, there was no formal application that I be disqualified. There was no affidavit setting out any factual basis for such an order to be made, and I indicated to Mr Jacob that if he wished to pursue that, he would need to file an application and affidavit so that it could be properly considered.
No such application has been filed and Mr Jacob, gratuitously, through an affidavit which he has now sought to file and part of which I have received, has set out a section in the affidavit headed, “Strickland J. disqualify himself from this hearing”.
I will not repeat what I have said earlier. He has ignored what I have said on 23 November 2010, but I am not going to adjourn the matter and I propose to deal with it now on the basis of an oral application by Mr Jacob, supported, as I say, by what is in his affidavit.
In the affidavit, Mr Jacob refers to an earlier appeal by him which was heard and determined by me finally on 24 May 2010, and which I dismissed. The hearing of that appeal, both in the sense of directions in relation to it and the final hearing, stretched over the period commencing on 22 April 2010 and concluded on 24 May 2010.
Mr Jacob has set out in some detail what he says his position is in relation to that appeal and his relationship with his lawyers at the time and what he was told and what he says he was not told about that appeal and how he only received my judgment sometime later than its delivery on 24 May 2010.
Mr Jacob suggests that in some way that appeal, the result of it and his difficulties - more specifically his difficulties with his lawyers - leads to the suggestion that I am biased against him and that that bias is now apparent in relation to the current appeal. For example, I refer to what Mr Jacob deposes to in paragraphs 34, 36, 37 and 38.
In the opening sentence of paragraph 38 Mr Jacob says:
… the question I promote for consideration is, regardless of how badly [T Law Firm] has performed,
referring to the earlier appeal -
it is clear that Justice Strickland has formed negative perceptions about me in the first appeal.
Now, in support of this allegation Mr Jacob has not referred to any transcript in relation to the so-called first appeal. He has not referred to any paragraph of my judgment delivered on 24 May 2010 or, indeed, any earlier judgments that I delivered in relation to applications to adjourn that appeal, as indicating that I have formed negative perceptions about him. There is simply an absence of evidence in support of that claim.
In paragraph 38 though, what he then does is make a quantum leap to refer to the transcript of 14 December 2010 - and he says that parts of that transcript:
… show His Honour in the plainest of language makes it clear that he finds it difficult to believe anything I say in his Court.
He continues:
Inevitably, a judicial officer, who has formed a view that he cannot believe anything that comes from a party is inevitably unable to apply a judicial discretion, independent of that clearly formed bias. One view of the May events is, that as Justice Strickland, cannot distinguish between the failings of [T Law Firm] and the inadequacies of me as a party, the inevitable and irretrievable harm is done to me in terms of the prospect of an impartial judicial decision now by the events of May. We cannot wind the clock back, we cannot undo what is done. It is ironic that I am again, pressing the submission of a judicial officer being so tainted by events prior to my issue before the Court in another matter, as for that judicial officer to be inappropriate to hear the present cause. That is one of my grounds pertaining to Federal Magistrate Lindsay hearing the fresh matter on 10th February 2010, when he has been so involved in earlier matters.
Then in paragraph 39 he says this:
The statement of His Honour Justice Strickland that he cannot believe anything I say, is so stark and so contrary to the prospect of an impartial judicial decision that I am compelled to press His Honour to replace himself. …
And he continues:
The comment of His Honour, Justice Strickland at pages 15 and 16 of the transcript of 14th December cited above, make it clear that there is an accumulation over the entirety of my contact with His Honour that is negative, and prejudicial to me. …
I simply do not have confidence that His Honour Justice Strickland can put all these past events to one side and come to a judicial decision in my matter. I believe the comments at Page 16 lines 21 and 22, where his honour, in effect, says he has already made up his mind to strike out my appeal, and is simply now, making sure he is effective and thorough because. “I don’t want any loose ends” demonstrates the conclusion before the arguments are before the court.
Now, if one goes to the transcript referred to, firstly there is page 15. The relevant lines are 35 to 37 and they read:
HIS HONOUR: Let me be clear, Ms Hurley. I don’t accept much, if at all, of what Mr [Jacob] has put to me from the bar table as being accurate, and that’s why I’m requiring it all to be put on affidavit.
Then page 16, lines 16 to 22:
HIS HONOUR: … although I am sympathetic to your position -
this is addressing Ms Hurley -
and am tempted to deal with the matter finally today, I want what Mr [Jacob] is saying he has said he has done on affidavit because, and to repeat, I don’t accept what he said to me from the bar table today and if that stands up, then there’s no question that you’ll get costs and, indeed, appropriately so, because he’s the one seeking the adjournment, not you – but Ms Hurley, I don’t – obviously my thinking is I don’t want any loose ends if I do what you ask me to do.
And the final reference that Mr Jacob relies upon is on the same page 16, at lines 41 to 47, where I said this:
That’s the only reason – the only reason I would – and contemplating a journey [sic] -
it should be “adjourning”, not “a journey” -
to repeat for the third time, I don’t accept what Mr [Jacob] has put to me from the bar table. It’s inconsistent. It’s not – both with other factual material that we have on the file and also these documents which have been handed up to me today by him. So that’s it. That’s what I propose to do. …
Now, how Mr Jacob interprets that as being a statement that - and reading from paragraph 38 of his affidavit:
… His Honour … makes it clear that he finds it difficult to believe anything I say in his Court.
is unclear, because that is not what I said. What I said was I do not accept what Mr Jacob says from the bar table because of the inconsistencies between what he said and the documentation presented along with the other documentation before me, and what I then required was an affidavit to be filed so that Mr Jacob can put on oath what he says, and then, once all that has happened, I will then be able to make a decision as to what I believe. That is what I said, but Mr Jacob has, to put it kindly, misunderstood or, putting it less kindly, misrepresented what I said in Court.
There are two aspects here. Mr Jacob is suggesting firstly, that I am biased against him, and secondly, that I have pre-judged the issue.
The issue that I am said to have pre-judged is the foreshadowed application by the wife for summary dismissal of the Notice of Appeal, and that is what Mr Jacob is highlighting when he refers to what I said on page 16, lines 16 to 22. He hones in on the clause “my thinking is I don’t want any loose ends,” as being indicative that I have pre-judged the issue. However, Mr Jacob needs to concentrate on the next words, which are, “if I do what you ask me to do”. That is completely at odds with any suggestion that I have pre-judged that issue.
My purpose in saying that was that if Ms Hurley makes the application then I need all relevant information before me on affidavit so that I can determine the application. Nothing more, nothing less. Again, putting it as kindly as I can, Mr Jacob has misunderstood what I have said. Putting it less kindly and less generously, he has misrepresented what I have said.
The law, as Ms Hurley has indicated, is quite settled in this area, and I refer to what the plurality of the High Court said in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 to 345:
6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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 be 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.
7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) 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 bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
I also refer to the earlier High Court decision of Johnson v Johnson (2000) 201 CLR 488 where the plurality said this at 492:
11. … It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
12. That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial". (Emphasis added, footnotes omitted)
Finally, I refer to another High Court decision in Re JRL; Ex parte CJL (1986) 161 CLR 342, where Mason J said this at 352:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established": Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. (Emphasis added, footnotes omitted)
This highlights the problem here. As I have said, Mr Jacob has not identified anything said by me during the course of the so-called first appeal, which would lead to any indication of bias or apprehended bias on my part. He has then made the quantum leap to the proceedings in this appeal and picked out three separate comments that I have made and suggested that they indicate bias and pre-judgment. In my view, the test has simply not been satisfied here and I propose to dismiss the application.
Next to recap where we are at. I am proceeding on the basis that the Notice of Appeal is only against the term of imprisonment imposed by the Federal Magistrate on 25 August 2010. Thus there is no need for Mr Jacob to seek leave to appeal and this can proceed as an appeal.
Mr Jacob has set out under the heading “Grounds of Appeal”, a ground as described that in the circumstances of the case, a term of imprisonment was inappropriate. That is his ground of appeal as it stands.
The appeal is to be heard by me. The question is when it can be heard but, more importantly, there is the need to properly prepare the appeal.
In that regard I have needed to spend significant time in identifying the documents that should be before the Court because Mr Jacob’s attempt at a Draft Appeal Index was inadequate. Although I raised with him that inadequacy on 23 November 2010 and adjourned the matter to enable him to file an amended document, he has ignored what I have said about that. Thus I have had to spend time in going through the Federal Magistrates Court file to identify the relevant documents, and I have done that with the helpful assistance of Ms Hurley.
In terms of the hearing of the appeal, I propose to list it commencing at 10.00am on 25 February 2011.
I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 22 December 2010.
Legal Associate:
Date: 11 February 2011
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