Landy & Landy

[2003] FamCA 1449

[2003] FamCA 1449

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA  
AT MELBOURNE  NO. MLF 10522 of 1996 

IN THE MATTER OF:

EL  (Applicant Wife)

and

ML  (Firstnamed
  Respondent Husband)

and

DM  (Secondnamed
Respondent / Controlling Trustee)

EDITED EX TEMPORE JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE GUEST

Date of Hearing:               22 & 23 July 2003
Date of Judgment:            24 July 2003

Appearances:

Mr Brott, Solicitor (Level 2, 493-495 Little Bourke Street, Melbourne Vic 3000), appeared on behalf of the Applicant (wife)

Mr D Graham QC, instructed by Messrs Cohen Woolf & Weinberg, Solicitors, DX 31450 Windsor, appeared on behalf of the Respondent (husband).

Cases referred to:

Kennedy v Cahill (1995) FLC 92-505
Webb v The Queen (1994) 181 CLR 41
Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd and Anor (1996) 65 FCR 215
Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530
IOOF Australian Trustees Ltd and Seas Sapfor Forest (1999) 78 SASR 151
Re JRL; ex parte CJL (1986) 161 CLR 342
Raybos Australia Pty Ltd and Anor v Tectran Corporation Pty Ltd and Ors (1986) 6 NSWLR 272
Taylor and Anor v Lawrence and Anor (2002) 3 WLR 640
Vakauta v Kelly (1989) 167 CLR 568

INTRODUCTION

1. [A complex property and spousal maintenance hearing commenced before Guest J on 28 March 2003.  On 16 July 2003 the wife filed an application for the disqualification of his Honour, that the proceedings be further adjourned and that the wife be given leave to tender documents in rebuttal and/or to re-open the case.  His Honour dealt with those applications on 24 July 2003 and the full text of his Honour’s reasons for judgment are reported in (2003) Fam CA 1449. 

2. In the course of argument the wife filed a supplementary submission that his Honour be disqualified on the basis of his ‘relationship’ with counsel who appeared on behalf of the husband at the hearing of the trial.  The following text records his Honour’s judgment on this issue.]

THE SUPPLEMENTARY SUBMISSIONS - EXHIBIT “W24”

1. I now deal with the supplementary submission marked Exhibit “W24”.  On 22 July 2003 Mr Douglas Graham QC appeared with counsel to argue this particular issue.  I have been helpfully provided with an outline and reply to the wife's supplementary submission (Exhibit “H14”) together with a List of Authorities relied upon and a statement of counsel (Exhibit “H15”). 

2. The wife’s supplementary submission (Exhibit “W24”) raises, subject to a qualification to which I shall shortly refer, a fresh matter.  It was submitted that it became known I was "best man" at counsel’s wedding.  By reason of "this close relationship between counsel and judge", combined with my "conduct towards the wife and her representatives" there "was a cogent and rational link" that such an association had "the capacity to influence" any decision I might make in the proceedings.  It was further submitted that greater weight should be given "to the apprehension of perceived bias" by reason of this fact not being disclosed (or known) until late in the proceedings.  Accordingly the relationship was "a probable explanation to the substantial bias disclosed by the court in favour of the husband and his representatives".  Insofar as the allegation of bias is concerned, I have already dealt with that as being misconceived and entirely without merit.

3. Reference was made to Kennedy v Cahill (1995) FLC 92-605. It was submitted there was a duty of disclosure "in the case of a serious and personal relationship", and that the relationship between counsel and myself was "not only constituted by a personal and close relationship of friendship but also by the fact that we had shared adjoining chambers".  In the course of the submission, it was argued, that in isolation such a point may not be sufficient to justify the disqualification, but when taken "in combination with the plethora of criticisms made by his Honour of the wife, the wife's counsel, the wife's case, the wife's forensic accountant, culminate in this submission".  The submission then detailed five transcript references in support of the suggestion that I was critical of Mr Brott.  I have carefully read those citations and the submissions on behalf of the husband in response to each of them. 

4. In my view, the argument as stated is without foundation and I regard the submission as both wild and extravagant.  No such conclusion could be drawn in the circumstances and I am reinforced in my view by the fact that no objection was contemporaneously taken by Mr O'Shannessy (counsel for the wife during the course of the trial) or near thereafter with any exchange or comment.  Insofar as it is submitted that I was critical of the wife, Mr O'Shannessy and Mr Miller (the wife’s expert witness), I refer to my earlier findings in this judgment when considering this aspect.  (See [2003] Fam CA 1449 for the complete list.)  That submission too is without merit.  I have not been critical of the wife's case, but have sought at all times to control and confine the evidence to relevant matters, having regard to fairness, the relevant provisions of the Evidence Act (1995) (Clth) and the four‑step exercise I am required to undertake when coming to my determination.  I have made that perfectly clear to both counsel during the trial.

5. Counsel provided a statement to the wife's solicitors explaining his "relationship" with me.  That document, dated 21 July 2003, was placed in evidence.  In the course of his submissions, Mr Brott laid emphasis on paragraph 4 of that statement as further evidencing the "relationship".  I propose to read into my judgment the statement of counsel which is in the following terms:

   “I, …, Senior Counsel, STATE:

   (1) I first became acquainted with Justice Guest J (sic) (then Mr Paul Guest) in approximately 1975 when he was Counsel instructed by the firm of solicitors of which I was then an employee. 

   (2) I first became friendly with him when I commenced to occupy Chambers in close proximity to his in about 1986/1987.  Thereafter I appeared as Junior Counsel led by Mr Guest (as he then was) from time to time.

   (3) Together with professional colleagues we would lunch together approximately every one or two weeks.  We had little social contact away from chambers but once or twice a year attended football matches.

   (4) In or about 1988/1989 I was briefed to appear as Junior Counsel led by Mr W. Gillard QC on behalf of Mr Guest (as he then was) in matrimonial proceedings in which he was a party.

   (5) In 1989 Mr Guest (as he then was) attended at my wedding.  Mr Fookes of counsel was best man.  Mr Guest (as he then was) had a role as an informal Master of Ceremonies.  He introduced a number of speakers and himself spoke at the wedding reception.

   (6) The contact between us continued on the same basis as previously described, save that my appearing as Junior Counsel with him was rare.  For a number of years when His Honour was president of the Family Law Bar Association I was a Vice‑President.

   (7) His Honour was appointed to the Family Court Bench in 1998.

   (8) Since His Honour's appointment I have ordinarily seen him with no greater frequency than once every two to three weeks and for much the time with much lesser frequency than that.  When I have seen him it has almost always been in the company of other lawyers and for luncheon.  We have attended at football matches approximately once per year (although in 2003 we have not attended any matches together).”

6. In his outline in reply to the wife's supplementary submissions, and having dealt with the transcript references relied upon by Mr Brott, it was submitted by Mr Graham QC that no reasonable person would suspect that I would conduct myself other than in a proper manner in accord with my oath of office.  Further, that the proper administration of justice would be impossible if friendships between barristers, who later became judges, precluded that “judge from hearing matters involving his barrister friends”. 

7. Mr Graham QC addressed my attention to a number of helpful authorities on this issue in support of his submission.  I was greatly assisted by his argument. 

8. I have also listened patiently to the oral submissions of Mr Brott and I pay due regard to them in coming to my determination.  The transcript itself will reveal the tenor of those submissions and in this regard I have nothing more to say.  However, there was one matter addressed by him that struck at the root of judicial independence and integrity, and is as follows:

   “MR BROTT:   The sequence I thought was - yes.  It seems that the principle concentration of Mr Graham's delivery has been on this point of the relationship between your Honour and [counsel].  The relationship that's been addressed in the court has principally been concerned about somebody giving a speech for somebody else's function or whatever and the association of the joint sharing of chambers.  But what I respectfully put to your Honour is that the association goes well beyond that and that point seems to have been omitted in Mr Graham's considerations.  There seems to have been a relationship where [counsel] has in fact acted on behalf of his (sic) Honour, which may cause the potential for the fair‑minded observer in the body of the court to think that his (sic) Honour may have been beholden to [counsel] for a particularly good result or that a particularly close relationship has developed that goes far beyond simply sharing a common wall in chambers.” 

9. At the commencement of his submissions, Mr Graham QC referred my attention to the categories of cases dealing with reasonable apprehension of bias, partiality or prejudgment and which were summarised by Deane J in Webb v the Queen (1994) 181 CLR 41 at 74. He referred to Kennedy v Cahill (supra) and which he described as a “rare example of a relationship between judge and counsel”; and so it was.  In that case the Full Court concluded that an undisclosed serious and close personal relationship which was intended to continue between a judge and a solicitor for one of the parties in the proceedings before that judge, gave rise to a reasonable apprehension of bias. 

10. A most helpful discussion on this issue may be gained from Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd and Anor (1996) 65 FCR 215 at 244 where Merkel J, when considering Kennedy v Cahill made the following observation:

    “It is likely that the conclusion was arrived at on the basis that the close and serious relationship would be perceived to involve an emotional or relational interdependence which might reasonably be perceived to have a capacity to influence how the judge might approach the resolution of the matter to be decided.  In that regard that case may be analogous to cases where it might be perceived to be inappropriate for persons in marital or analogous relationships to appear before their partner as an adjudicator.”

11. His Honour then referred to Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530 where, at page 543-5, Bray CJ, when dealing with the issue of a relationship between judge and counsel observed:

    “Nevertheless it seems to me that there must be cases where a judge would be disqualified because of his connection with one of the counsel appearing before him.  I should think, for example, that he or she would be disqualified if his or her wife or husband sought to conduct a case before him.  I should think he would be disqualified if he were an employee of the counsel.” 

12. It was the view of Merkel J that those two cases demonstrated the requirement for:

    “A cogent and rational link between the association and its capacity to influence the decision to be made in the particular case.  It is the capacity of the association to influence the decision, rather than the association as such that is disqualifying.” (p 226)

    [Approved in IOOF Australian Trustees Ltd v Seas Sapfor Forest (1999) 78 SASR 151 at page 181.]

13. With that I agree.  As I understand the submission advanced, and put directly by Mr Brott, that my association with counsel, (as described in Exhibit “H15”), would raise a reasonable apprehension that I may not bring an impartial and unprejudiced mind to the resolution of the issues I am to decide and otherwise as argued by Mr Brott before me.  In Aussie Airlines v Australian Airlines Merkel J observed that such an objection:

    “… may well have substance if the association was such that the judge was, for some reason ‘beholden’ to counsel or if there was a situation of fear, favour or some capacity to exercise power in relation to the association.  Such situations may arise if for example, a judge is indebted to counsel, or has otherwise been financially assisted by counsel, in respect of significant sums payable at call.  Examples of the circumstances justifying disqualification were considered in Kennedy v Cahill and Fingleton.  However, such cases are to be approached by reference to the realities rather than niceties or remote or hypothetical possibilities.” (p 231)

14. In the result it must rest on the facts of each particular case and the role of an “informed” observer.  This was discussed by Merkel J (at pages 226 to 230) who, after considering competing views, said that the differences, as discussed by him, related “more to the extent of the knowledge to be imputed than any underlying difference as to the principles to be applied in determining apprehension of bias” (p 230).  There is no reasonable, logical or rational basis to suggest, for the reasons relied upon by Mr Brott, that I would yield to influence by or was beholden to counsel.  Such a submission is plainly fanciful.

15. The case of Aussie Airlines v Australian Airlines dealt with Merkel J’s “association” with counsel appearing before him and agreed, for the purposes of that hearing, to be as follows:

    “(a) a close and longstanding personal relationship which had involved each being signatories to each other's bank accounts and directors of each other's family trust companies although those particular matters had been terminated after my judicial appointment;

    (b) a close and longstanding professional relationship which included the sharing of chambers, together with four other members of counsel, for 12-13 years;

    (c) each of the six members of chambers, had a one-sixth interest in the trust administering chambers.  The purchase of my interest was in the process of being finalised with the new incoming member of chambers who had taken over my chambers and my interest in the trust;

    (d) each had interests, together with others, in a number of tenanted investment properties;

    (e) each had a one‑eighth interest in a hotel freehold and business.  The interest was not held personally.  Agreement had been reached to sell each of the interests to the holder of a 25 per cent interest in the hotel at a figure to be determined by an independent valuer with settlement in 30 days.  The type of valuer to be appointed was the only unresolved matter;

    (f) none of the investments involved any active day‑to‑day role or decision‑making and neither had my role in the conduct of the hotel business or freehold;

    (g) each had made and had the capacity to continue to make all necessary or expected contributions to the financing and servicing of all obligations in respect of the investments out of his own assets and independently of the other.”

16. I raise those facts at this stage for as I earlier said, decisions rest on the facts discrete to each particular application for consideration.  One may draw a contrast between the matters disclosed in any event between Exhibit “H15” and those adumbrated by Merkel J.  His Honour considered "The awareness of the observer of the role of counsel" and approached his decision on the basis that an “informed” observer, when examining the association in the proceedings before him could be “assumed to do so with the presumed general knowledge that”:

    “(a) when barristers act on a client's behalf they do so in a professional capacity as their client's legal advocate selected to act in the case for that purpose.  Any barrister so selected could have been briefed to fulfil the same task for the opposite side;

    (b) in accepting a brief to act for a client in a particular commercial case the barrister does not become part of or identified with the client and has no direct or indirect financial interest in the outcome of the case;

    (c) the barrister acts as such as a member of an independent Bar.  The barrister is instructed by a solicitor or a firm of solicitors to present the client's case and in doing so is bound by a professional code of ethics ensuring that the barrister's conduct is in accordance with his or her professional standards;

    (d) it is commonplace for barristers who are close associates, or friends and who may even be from the same set of chambers, to fight on opposite sides of a case without compromising their professional duties to act in the interests of their clients;

    (e) as judges are usually appointed from the senior ranks of the profession, particularly the Bar, it is likely that they will be well acquainted, and have formed close associations, with senior counsel appearing before them.  It is also likely that they will have personal and professional associations with many of the counsel appearing before them.”

17. That, in my view, summarises succinctly the role of counsel and that in many instances, such as the proceedings before me, social and personal friendships to varying degrees are formed. There is no rational link at all in my “association” with counsel that could possibly suggest or give rise to a capacity to influence me in his favour and indeed such a suggestion pays scant regard to judicial independence and integrity, or the Oath of Allegiance and of office taken upon appointment as a judge of the Family Court. See s 26 of the Family Law Act (1975) (Clth).  There is no proper or cogent basis at all for concluding that I may not bring an impartial and unprejudiced mind to the proceedings before me. 

18. Indeed, it should be said clearly that the fact a party has a subjective apprehension of bias is not of itself sufficient to warrant or require disqualification of a judge.  I refer to what Mason J had to say in Re JRL; ex parte CJL (1986) 161 CLR 342 at page 352. Disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment which must be “firmly established”.  See also Raybos Australia Pty Ltd and Anor v Tectran Corporation Pty Ltd and Ors (1986) 6 NSWLR 272, especially at 275-6).

19. In Taylor and Anor v Lawrence and Anor (2002) 3 WLR 640, the English Court of Appeal had occasion to consider the issue of an association between a judge and solicitors involved in a matter before that judge, and who had acted for him without fee. There, Lord Woolf CJ, Lord Phillips of Worth‑Maltravers MR, and Ward, Brooke and Chadwick LJJ had this to say:

    “61. The fact that an observer has to be ‘fair‑minded and informed’ is important.  The informed observer can be expected to be aware of the legal traditions and culture of this jurisdiction.  Those legal traditions and that culture have played an important role in ensuring the high standards of integrity on the part of both the judiciary and the profession which happily still exist in this jurisdiction.  Our experience over centuries is that this integrity is enhanced, not damaged, by the close relations that exist between the judiciary and the legal profession.  Unlike some jurisdictions the judiciary here does not isolate itself from contact with the profession.  Many examples of the traditionally close relationship can be given:  the practice of judges and advocates lunching and dining together at the Inns of Court; the Master of the Rolls's involvement in the activities of the Law Society; the fact that it is commonplace, particularly in specialist areas of litigation and on the circuits, for the practitioners to practise together in a small number of chambers and in a small number of firms of solicitors, and for members of the judiciary to be recruited from those chambers and firms.

    62. It is also accepted that barristers from the same chambers may appear before judges who were former members of their chambers or on opposite sides of the same case.  This close relationship does not prejudice but enhanced the administration of justice.  The advantages in terms of improved professional standards which can flow from these practices have been recognised and admired in other jurisdictions.  Again by way of example, in the United States they have in recent years established the rapidly expanding American Inns of Court modelled on their English counterparts with the objective of improving professional standards.

    63.The informed observer will therefore be aware that in the ordinary way contacts between the judiciary and the profession should not be regarded as giving rise to a possibility of bias.  On the contrary, they promote an atmosphere which is totally inimical to the existence of bias.  What is true of such relationships is equally true of normal professional relationships between a judge and the lawyers he may instruct in a private capacity.

    64. A further general comment which we would make, is that judges should be circumspect about declaring the existence of a relationship where there is no real possibility of it being regarded by a fair‑minded and informed observer as raising a possibility of bias.  If such relationship is disclosed, it unnecessarily raises an implication that it could affect the judgment and approach of the judge.  If this is not the position no purpose is served by mentioning the relationship.  On the other hand, if the situation is one where a fair‑minded and informed person might regard the judge as biased, it is important that disclosure should be made.  If the position is borderline, disclosure should be made because then the judge can consider, having heard the submissions of the parties, whether or not he should withdraw.  In other situations disclosure can unnecessarily undermine the litigants' confidence in the judge. …”

1. That brings me to the oral submission of Mr Brott, who addressed me substantially on the duty of disclosure and sourced his remarks directly from the judgment of Merkel J in Aussie Airlines v Australian Airlines (supra) at pages 220 to 221.  He submitted that the failure to disclose, of itself, can be one of the circumstances which, together with others, may give rise to a reasonable apprehension of bias.  I listened patiently to what he had to say and I have regard to his submission.  I reject that as in any way being apposite to the situation argued before me.

2. Having regard to all that I have said, I am quite satisfied that no reasonable and informed person would conclude or apprehend that I would conduct myself other than in accordance with my Oath of Office.  I agree with the submission of Mr Graham QC that the proper administration of justice would become “impossible” if friendships between barristers (and solicitors) who later become judges could preclude that judge from hearing matters in which his/her former colleagues appear.  In my view judges should be circumspect about declaring the existence of a relationship where there is no real possibility of it being regarded by a fair‑minded and informed observer as raising a possibility of bias.

3. I found extremely helpful and agree entirely with that expressed by the Court of Appeal in Taylor v Lawrence (supra), to which I have referred in detail.  In my view this is not even a position that could be regarded as “borderline”.  As with a number of my former colleagues at the bar where I practised for 29 years, I enjoy a friendship which by no measure impacts upon my judicial duty as a judge of the Family Court.  The two matters principally relied upon by Mr Brott are aged by 14 or so years.  In these circumstances there is, in my view, no cogent or rational link between the association relied upon by the wife and its capacity to influence my decision in this case.  Any fair minded, informed observer seized with the facts advanced by Mr Brott and understanding the role of counsel could not conclude, by any measure, that I may not bring an impartial and unprejudiced mind to the resolution of these proceedings.

4. One must look at the realities of everyday practice in court and the due administration of justice, balancing of course the integrity of the legal process.  This must be observed "in the real world of actual litigation", (per Brennan, Deane and Gaudron JJ in Vakauta v Kelly (1989) 167 CLR 568 at page 570), and procedural dispositions "governed by the reality of the situation", (per Merkel J in Aussie Airlines v Australian Airlines at page 233). 

5. For the reasons stated I dismiss the application filed 16 July 2003.  The orders of the court will be as follows:

   (1)That the Form 8 Application of the wife filed 16 July 2003 be dismissed.

   (2)That the costs of the parties of and incidental to the application be reserved for further written submissions upon the conclusion of the proceedings.

   (3)That pursuant to Order 38 rule 25 of the Family Law Rules this matter reasonably required the attendance of Counsel.

   (4)That the extempore judgment delivered this day be transcribed and when transcribed a copy be placed on the court file and made available to each party.

   I certify that the preceding 26 numbered
    paragraphs are a true copy of the
   reasons for judgment herein of
   the Honourable Justice Guest.
   
   
   
   
   Associate to Guest J