FAMILY COURT OF AUSTRALIA
Jess & Jess [2021] FamCAFC 159
Appeal from: Jess & Jess and Ors [2018] FamCA 1179
Jess (Declaration and Recusal) [2019] FamCA 841
Appeal number(s): SOA 74 of 2019 File number(s): MLF 3444 of 2006 Judgment of: ALSTERGREN CJ, STRICKLAND & KENT JJ Date of judgment: 25 August 2021 Catchwords: FAMILY LAW – LEAVE TO APPEAL – APPEAL – DECLARATION – Whether leave to appeal from a declaration is required – Whether a declaration of a finding of fact is interlocutory or final – Whether the primary judge finally determined the rights of the parties – Where the primary judge made clear that she was not yet dealing with the wife’s applications pursuant to ss 79, 79A and 106B of the Family Law Act 1975 (Cth) – Where the declaration does not finally determine the rights of the parties – Where the order, although expressed in declaratory terms, is more akin to a finding of fact – Where leave to appeal is required.
FAMILY LAW – APPEAL – DECLARATION – Where the primary judge made a declaration that a document was not executed on the date that it bears – Whether findings of fact open on the evidence – Whether delay weakens the primary judge’s advantage in having seen the oral and documentary evidence unfold in a coherent manner – Whether the findings are “glaringly improbable” or “contrary to compelling inferences” – Where the primary judge undertook a detailed consideration of her impressions of the credit of the central witnesses in the case – Where any factual findings had an evidentiary foundation – Where there was sufficient factual evidence to persuade the primary judge that the document was not executed on the date it bears.
FAMILY LAW – LEAVE TO APPEAL – APPEAL – DISQUALIFICATION – Whether leave to appeal from dismissal of a disqualification application is required – Whether “decree or decision” is interlocutory or final – Where a decision by a judge in civil proceedings to refuse an application to disqualify themselves does not finally determine the rights of the parties – Where dismissal of a disqualification application is interlocutory – Where leave to appeal is required – Where the decision is attended by sufficient doubt to warrant it being reconsidered and substantial injustice would result if leave were refused.
FAMILY LAW – APPEAL – DISQUALIFICATION – Apprehended bias – Whether the primary judge misapplied the test of apprehended bias – Whether the primary judge focused on whether the fair-minded lay observer would have agreed with the primary judge’s adverse findings rather than what that observer might reasonably apprehend – Where the primary judge made findings of credit and fraud – Where the primary judge’s approach reflects an error in the application of the test.
FAMILY LAW – APPEAL – DISQUALIFICATION – Waiver – Where the appellants sought to have the finding of fact in relation to the document determined as a preliminary issue – Whether the appellants waived their right to seek that…
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- Jess & Jess [2021] FamCAFC 159
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- [2021] FamCAFC 159
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CaseChat Overview and Summary
Further, the court was required to determine whether leave to appeal from the dismissal of a disqualification application was necessary. The primary judge had dismissed the appellants' application to disqualify themselves on the basis of apprehended bias, but the court held that leave to appeal was required, as the dismissal was interlocutory and not final, and the decision was attended by sufficient doubt to warrant it being reconsidered. The court also held that the primary judge misapplied the test of apprehended bias, as she focused on whether the fair-minded lay observer would have agreed with her adverse findings rather than what that observer might reasonably apprehend. The court further held that the appellants had waived their right to seek the primary judge's recusal, as they did not raise waiver as an applicable exception to apprehended bias before the primary judge.
Orders
Orders of the court
SOA 74 of 2019
MLF 3444 of 2006
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:
MR JESS JNR
First Appellant
MR BAN
Second Appellant
AND:
MS JESS
First Respondent
MR J IN HIS CAPACITY AS THE LEGAL PERSONAL REPRESENTATIVE OF THE LATE MR JESS SNR
Second Respondent
MR K AND MR L AS TRUSTEES OF THE BANKRUPT ESTATE OF MR JESS SNR (INTERVENERS)
Third Respondent
(and others named in the Schedule)
ORDER MADE BY:
ALSTERGREN CJ, STRICKLAND & KENT JJ
DATE OF ORDER:
25 AUGUST 2021
THE COURT ORDERS THAT:
1. The application for leave to appeal Order 2 of the orders made on 15 November 2019 is dismissed.
2. The appellants have leave to appeal Order 4 of the orders made on 15 November 2019 and the appeal from that order be allowed and that order be set aside.
3. The primary judge is disqualified from any further hearing of the proceedings and the balance of the proceedings be determined by a judge other than the primary judge.
4. Any party seeking an order for costs in respect of the appeal shall file and serve within fourteen (14) days a written submission of no more than five (5) pages identifying the order sought and the reasons relied upon for that order.
5. Any party against whom an order for costs is sought shall file and serve within fourteen (14) days of service upon that party of written submissions pursuant to Order 4, a written submission of no more than five (5) pages in response.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: MR J
We also do not consider that the exchanges in final submissions at trial support any proposition to the effect that the appellants were unaware of the issue in relation to which the wife bore the onus of proof. The following transpired in the course of exchanges between the primary judge and Queen’s Counsel for the appellants:[QUEEN’S COUNSEL FOR THE APPELLANTS]: Yes. For completeness, we understand my learned friend has closed his case and we said that we would give consideration to whether we wanted to request [Mr Jess Snr] again for further cross-examination. Your Honour, we do not. So we regard [Mr Jess Snr’s] case as closed as well. So, your Honour, to open the case on behalf of the Appellants, your Honour, the issue for determination in this part of the proceeding is on what date was the deed of declaration of trust bearing the date 28 February 2002 executed. That comes out of your Honour’s ruling. HER HONOUR: Isn’t it really whether it was executed on the date that it bears? [QUEEN’S COUNSEL FOR THE APPELLANTS]: I’m drawing that language from the ruling your Honour made on 29 July 2015. HER HONOUR: I might not have said it very well. But I don’t — if find that it was not — if it was executed years afterwards, I don’t need to be satisfied as to what specific date years afterwards.[QUEEN’S COUNSEL FOR THE APPELLANTS]: Well, we say that the date — well, our case, your Honour, is that, as your Honour knows, it was – it was executed on the date that it bears. HER HONOUR: Right. [QUEEN’S COUNSEL FOR THE APPELLANTS]: The case that we’ve had to meet is that it was executed at a later time. We’ve heard the evidence of [Mr Jess Snr] which was that he first became aware of it on 27 March 2007. That’s why your Honour may not be able to determine with precision, if your Honour does not accept our case, what date the deed of declaration of trust was executed. But we say for our part it was executed on the day that it bears and that has always been our case, and it certainly was not executed in 2006 or 2007. Your Honour, we say that the declaration of trust was a product of two necessities which arose in January and February of 2002.(Transcript 2 December 2016, p.1017 line 20 to p.1018 line 3) (Emphasis added) We find no substance in the complaint that the primary judge determined the wrong question. It is clear that the primary judge concluded that the DODT was fraudulent and that was the ultimate question to be determined.Ground 2: Standard of proof not satisfied2.Given that the allegations concerning the DODT were matters of the utmost gravity, such that clear, cogent and strict proof was necessary in accordance with section 140 of the Evidence Act 1995 (Cth), the primary judge erred in finding that:(a) the DODT was not executed on 28 February 2002 ([968]);(b) “unscrupulous and dishonest conduct” gave rise to the DODT ([968]);(c) the Dear Dadda letter was a “document manufactured to be evidence in a case” ([187]) and “a document constructed to lend authenticity to the DODT” ([188]);(d) the 4 September 2006 documents:(i)“were invented to facilitate a false trail of evidence to corroborate the existence of the DODT prior to 19 December 2006” ([560]);(ii)“the 4 September documents were created to undermine the wife’s case” ([570]);(iii)“the only plausible explanation of the creation of the documents is that the documents were created by someone who wished to prove that the DODT was executed on the date it bears” ([579]);(iv)“even if the husband’s signatures were genuine, the 4 September documents could still have been created by or at the direction of the husband assisted by Mr Jess Jnr and Mr Ban and for the fraudulent purposes.”[547]; and(e)the documents annexed to the supplementary affidavit of Mr V were not authentic ([277], [285] and [321]).The primary judge ought to have found that Ms Jess’s case rose no higher than inexact proofs, indefinite testimony and indirect inferences such that the Court could not be reasonably satisfied to the requisite standard that the DODT was not executed on 28 February 2002.