Jeeves and Jeeves

[2009] FamCA 855

FAMILY COURT OF AUSTRALIA

JEEVES & JEEVES [2009] FamCA 855

FAMILY LAW – COURTS AND JUDGES – Application for disqualification

Family Law Act 1975 (Cth)

Concrete Proprietary Limited & Parramatta Design and Developments Proprietary Limited (2006) HCA 55
Johnson & Johnson (2000) 201 CLR 488
Livesey & New South Wales Bar Association (1983) 151 CLR 288
R & Watson; Ex parte Armstrong (1976) 136 CLR 248
Re JLR; Ex parte CJL (1986) 161 CLR 342
Re Lusink; Ex parte Shaw (1980) 55 ALJR 12
Vakauta & Kelly (1989) 167 CLR 568

APPLICANT: Ms Jeeves

RESPONDENT: Mr Jeeves

FILE NUMBER: MLF 10167 of 2000

DATE DELIVERED: 12 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS MOLYNEUX QC

SOLICITOR FOR THE APPLICANT: JA MIDDLEMIS

COUNSEL FOR THE RESPONDENT: MR SWEENEY

SOLICITOR FOR THE RESPONDENT: TAUSSIG CHERRIE & ASSOCIATES

Orders

1. The oral application that I stand aside is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Jeeves & Jeeves is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 10167 of 2000

MS JEEVES

Applicant

And

MR JEEVES

Respondent

REASONS FOR JUDGMENT

1. Senior Counsel for the wife applied this morning that I disqualify myself for bias or apprehended bias. I am in the midst of an application by the wife pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) to set aside orders made by this Court a number of years ago. Because of an earlier bifurcation order, I am only dealing with the s 79A application. This is, as I perceive it, the fifth day of these proceedings. Yesterday afternoon, the wife called a witness, Mr B, who was at or about the time of the final orders a business banker doing work for the husband. Part of the problem in this case is that for reasons best known to the wife and under constant objection by the husband, witnesses have been called without them having sworn affidavits or even provided a proof of evidence.

2. I have permitted this unusual course of action to endeavour to get to the bottom of what is obviously a difficult case.  The wife’s case is that the husband failed to disclose information to her, her advisers and the court.  Mr B gave evidence that he was the husband’s banker up until he left the bank in about September 2005.  He said he had no dealings with the husband since.  He recalled the husband applying for finance to be used to acquire a rural property in New South Wales.  When shown a letter dated 11 May 2004, he recalled that it was probably the first offer for finance for the acquisition made by the bank.  However, he was asked what documents he relied upon to grant the loan, and objection was taken to the question that it was not he, Mr B, who made the approval.  Notwithstanding that, he then said that he had access to the 2004 financials.

3. I then said to Mr B that that could not possibly be right, because the letter was dated 11 May 2004 and I had therefore presumed that the financial year ending 30 June 2004 had not ended.  The witness then said the letter should have been dated 11 May 2005.  When Senior Counsel for the wife queried him about that, he confirmed that view, because the dates on the application were entered in the bank’s computer showing 2005.  The court room then descended into some confusion with Senior Counsel for the wife asking Counsel for the husband to concede that the husband bought the property, presumably with the bank’s money, in 2004, not 2005.  Today Senior Counsel for the wife has submitted that in my query to the witness I had expressed a clear and unequivocal concluded view that the offer made by the bank to the husband was after the loan application, that is, in 2005.

4. Senior Counsel for the wife submitted that when she endeavoured to remedy the error I had supposedly made, that is, formed a concluded view, an objection was made by Counsel for the husband to her attempt to clarify the position.  In addition to the submission that I had formed a concluded view about the evidence, it was said that I had ruled against the wife’s Senior Counsel consistent with that concluded view that is that I had ruled in the husband’s favour and had thereby advanced the husband’s case.  Further Senior Counsel for the wife said, and later repeated the position, that it was a matter of common knowledge that I had read with Counsel for the husband and that it was unclear to the wife as to the extent of the personal relationship between myself and Mr Sweeney.  It was also suggested that in view of my concluded finding, perhaps there existed matters known to me that should have been disclosed to the wife.

5. Counsel for the husband expressed the view that he was affronted by the latter assertion.  Apart from the fact that it was vague and only subliminally related to the submission about the concluded view, I reject any such suggestion.  Importantly, if this was known to Senior Counsel before the case started, it was not then raised.  Equally importantly, I made rulings last year on at least two occasions including on the bifurcation issue, and it was not then raised. 

6. The test in relation to bias was set out in some detail in a majority judgment of the High Court in Johnson & Johnson (2000) 201 CLR 488 where Gleeson CJ, Gaudron, McHugh, Gummow and Haynes JJ stated the test to be:

   It has been established by a series of decisions in 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. 

7. Their Honours then continued:

   Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

8. Thus, the test to be applied is that I should disqualify myself if a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question I am required to decide in this case. 

9. That principle is based on the fact that justice should be done and be seen to be done, and that this requirement reflects the fundamental importance of the principle that a tribunal be independent and impartial. 

10. There are a number of decisions that support that principle:  R & Watson;  Ex parte Armstrong (1976) 136 CLR 248, Re Lusink;  Ex parte Shaw (1980) 55 ALJR 12, Livesey & New South Wales Bar Association (1983) 151 CLR 288, Re JLR;  Ex parte CJL (1986) 161 CLR 342 and Vakauta & Kelly (1989) 167 CLR 568.

11. There is a also a decision of Concrete Proprietary Limited & Parramatta Design and Developments Proprietary Limited (2006) HCA 55, a decision of the High Court on 6 December 2006, to which I will refer in a moment.

12. In Re JLR;  Ex parte CJL (supra) Mason J said:

    Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge they will have their case tried by someone thought to be more likely to decide the case in their favour. 

13. In Concrete Proprietary Limited & Parramatta Design and Developments Proprietary Limited (supra), Kirby and Crennan JJ, who were part of the majority, reiterated what was said by the majority in Johnson & Johnson (supra), that it was important to bear in mind the characteristics of modern litigation.  Their Honours referred to the fictional observer and quoted from Johnson:

    Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.  The rules and conventions governing such practice are not frozen in time.

14. Their Honours then went on to deal with the other matters that were mentioned in Johnson (supra) including Vakauta & Kelly (supra).  They reiterated that the expression of tentative views on which the parties are permitted to make submissions does not manifest partiality.

15. In this case, I did not form any tentative view about either party’s case. 

16. A judge should not disqualify himself or herself on the basis of bias or a reasonable apprehension of bias unless there are substantial grounds established. 

17. I find in this case there are no reasonable grounds on which I could or should disqualify myself or even consider seriously disqualifying myself from the determination of the issue now before the Court. 

18. My reasons are that I simply clarified the obvious with the witness.  I did not form any view about his evidence.  It was simply his evidence.  It had not been tested by cross-examination nor, more importantly, had Senior Counsel for the wife had any opportunity to re-examine him after that cross-examination.

19. I did not rule that Senior Counsel for the wife could not lead further evidence and, insofar as it may be thought that I aligned myself somehow with the husband’s case, I reject that.   I simply did what all judges do, which is clarify something at the time which does not make sense.  I find that there is simply no case made out.  I do not see the slightest basis of evidence or contention that there is or should be any apprehension of alleged bias or prejudgment. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  17 August 2009