M and M (No.2)
[2003] FMCAfam 102
•2 April 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & M (No. 2) | [2003] FMCAfam 102 |
| FAMILY LAW – Courts and judges – functus officio – bias – reasonable apprehension of bias – application that federal magistrate who determined s.79 application be disqualified from hearing subsequent s.79A application between the same parties – s.117C offer filed in s.79 proceedings disclosed before s.79A application heard – application refused. |
Family Law Act 1975, ss.79A, 117, 117C,(1),(3), 117(2), 4(1)(ca),(f)
Federal Magistrates Act 1999, s.39(3), (4)
Dogramaci (2000) Fam CA 1668
R v Watson; Ex Parte Armstrong (1976) 136 CLR 248
Johnson [2000] HCA 48
JRL; Ex parte CJL (1986) 161 CLR 342
Milham and Stanford (2001) FLC 93-073
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 453
Ipoppolo v Conti (1987) FLC 91-852
Prowse (1995) FLC 92-557
| Applicant: | K M |
| Respondent: | G M |
| File No: | SYM295 of 2002 |
| Delivered on: | 2 April 2003 |
| Delivered at: | Parramatta |
| Hearing Date: | 21 March 2003 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Ms M. Bridger |
| Solicitors for the Applicant: | Kells The Lawyers |
| Counsel for the Respondent: | Mr N. McPherson |
| Solicitors for the Respondent: | Kerrie Johnson & Associates |
ORDERS
That the husband’s application filed 4 March 2003 is dismissed.
That the question of the costs of the application is listed for argument on 7 April 2003.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
SYM295 of 2002
| K M |
Applicant
And
| G M |
Respondent
REASONS FOR JUDGMENT
This is an application by K M (“the husband”) that I disqualify myself from hearing these proceedings. His application was filed on 5 March 2003 and heard on 21 March 2003.
G M (“the wife”) sought that his application be dismissed. Although the argument at hearing focused on the disqualification application, Mr M’s application sought the following:
·That a costs order made on 19 February 2003 be stayed.
·That I disqualify myself.
·That the proceedings be transferred to the Family Court of Australia at Sydney.
·That all previous directions be vacated.
Background
On 11 March 2002 G M filed an application for the adjustment of property interests pursuant to s.79 of the Family Law Act 1975. Those proceedings were started in the Family Court at Sydney. K M sought orders different to those proposed by the wife and after pre-trial mediation processes failed to resolve the dispute, the proceedings were transferred from the Family Court at Sydney to the Federal Magistrates Court at Wollongong.
The proceedings were called on for final hearing on 28 and
29 November 2002. Both parties appeared and were represented by counsel throughout the hearing. During the course of the hearing the parties compromised some of the contentious issues, including the value of particular assets and liabilities as at the date of hearing. For example, they agreed that the wife’s savings amounted to $12,000. At the end of the wife’s case the husband’s counsel made an application that I disqualify myself from further hearing the matter because of apprehended bias. It was said that the apprehension arose because of observations made by me about the apparent strength and/or weakness of the parties’ case. I refused the application.
At the conclusion of the hearing I reserved my decision and delivered judgment on 4 December 2002. In essence, the orders provided that the wife pay the husband $79,150 within eight weeks and that upon payment the husband transfer to the wife his interest in 23 N Street, Fairy Meadow. Simultaneously, the wife was ordered to transfer her interest in a property at 5/2 The A, Corrimal to the husband. Further orders were made in relation to a debt due to the parties’ sons and otherwise in relation to mortgages and items of personalty. Importantly, in the event that the wife did not pay the monies due to the husband within the time frame ordered, he had the option to acquire her interest in the property for $117,850. Order 21 provided that all outstanding applications were dismissed. Neither party appealed the orders. The appeal period has expired.
On 17 December 2002 the husband’s solicitors wrote to the court and asked that the proceedings be listed so that he could make an application that the wife pay his costs of the s.79 proceedings. On
18 December 2002 my associate wrote to both parties’ solicitors and advised that the costs application was listed for hearing at 9.30 am on
3 February 2003 at Wollongong.
When the matter was called on, on 3 February 2003, both parties appeared represented by counsel. Apparently, the wife had not paid the monies due pursuant to the s.79 orders to the husband because it was alleged that the Certificate of Title was lost and a replacement certificate was required from the Land Titles Office. Relying on the wife’s failure to complete the buy out within the appointed time, the husband declined to settle and claimed to have exercised his option to purchase the wife’s interest in the Fairy Meadow property.
The wife then filed a s.79A application seeking an extension of time within which to pay the moneys. This application, by agreement, was listed for hearing at 10.00 am on 6 February 2003. The husband’s costs application was listed for hearing at the same time. The husband’s counsel advised that the costs application was primarily based on an assertion that he had previously made an offer of settlement that was approximately equivalent to or more generous than the outcome ordered in favour of the wife. The wife’s counsel indicated that she also made an application for costs that was based upon an offer of compromise apparently contained in a Calderbank letter. Prior to the start of the hearing, the husband’s solicitors provided me with a copy of his s.117C offer of settlement.
When the matter was called on for hearing on 6 February 2003 the husband’s counsel indicated that based on material discovered in documents produced under subpoena from the ANZ Bank he wished to make an application under s.79A on the basis of “material non-disclosure” by the wife in the substantive proceedings. Because, he alleges, the wife has fraudulently failed to disclose assets at the time of the hearing. In the circumstances, the wife’s counsel agreed that the husband had to have an adjournment so that his application could be filed and both parties prepare and present evidence in support of their case. Apparently, it is common ground that the information provided by the wife to the ANZ Bank is different to that previously disclosed in her affidavit and financial statement relied upon in the s.79 hearing.
I made directions for the filing of documents, discovery and otherwise listed the matter for final hearing before me on 7 April 2003.
On the husband’s request the matter was listed for telephone directions before me on 18 February 2003. Again, on his request, that date was vacated and the matter listed the next day for telephone mention. At the telephone mention the husband’s counsel sought leave to make an oral application that I disqualify myself and also that the proceedings be transferred to the Family Court of Australia. I refused leave and ordered that the husband pays the wife’s costs of $250. During the telephone hearing I reminded both counsel that I had previously read the husband’s s.117C(1) offer of compromise. I discussed whether in those circumstances I ought to decline to hear the proceedings. As the offer related to the earlier s.79 proceedings s.117(3) enabled it to be properly placed before me. Even if it had been presented contrary to s.117C(3), s.117(4) makes it clear that a judicial officer is not disqualified from hearing a proceeding only because a s.117C has been disclosed to the court. Having indicated that I was satisfied that this did not preclude me from hearing different proceedings, neither counsel indicated that they were instructed to press a contrary view. Subsequently, the husband filed the application identified in paragraph 2 of these reasons.
The husband’s submissions
During argument, the husband’s counsel emphasised that the disqualification application was not predicated upon apprehended or actual bias. The disqualification application is based upon a submission that I am functus officio in the sense that making final s.79 orders on
4 December 2002 has exhausted the court’s jurisdiction. Also, that on the s.79A hearing the court will be enjoined to make findings concerning the value of the wife’s savings different to the findings made in my judgment. This it was submitted placed me in considerable difficulty, as I could not be expected to make different findings. Counsel submitted that I could not reconsider the matter and come to a different decision about the facts. In arguendo, I invited counsel to address whether different considerations arose, as I did not adjudicate contentious facts before making the finding concerning the wife’s cash assets. That is the finding accorded with an agreed fact presented to the court. In relation to the functus officio argument I asked whether counsel conceded that as the court was currently seized of a different application, viz competing s.79A applications, that it had jurisdiction to determine these. The husband’s counsel submitted that neither of these factors was relevant.
In relation to the transfer of the proceedings to the Family Court, counsel indicated that if another federal magistrate could hear the matter the transfer application was abandoned. No submissions, or evidence, were presented that could have justified a transfer by reference to s.39(3) and (4) of the Federal Magistrates Act 1999 and/or rule 8.024 FMC Rules. The transfer application appeared to be a ruse in the event the disqualification application was unsuccessful.
The wife’s submissions
The wife’s counsel submitted that the applicant misapprehended the functus officio concept. Because there was a fresh application, namely the competing s.79A and outstanding costs applications the court was properly seized of both applications. Having anticipated that the husband would once again base his application on apprehended bias counsel delivered written submissions that addressed this issue. He emphasised that it would be an abdication of judicial function to fail to hear a matter that had been entrusted to me by the ordinary procedures and practices of the court. While the submission was made within the context of excusing oneself because an application was made irrespective of its merit, the submission accurately summarises a judicial officers obligation to hear and determine matters listed before them.
Functus officio
The functus officio concept arose for consideration in Dogramaci (2000) Fam CA 1668. In that case the husband appealed a costs order inter alia made against him by the trial judge after the trial judge disqualified himself from hearing the matter further. He complained that once the trial judge had disqualified himself and then adjourned the proceedings he was functus officio. The Full Court described the rule as follows:
“18. The CCH Macquarie Concise Dictionary of Modern Law (Sydney: CCH, 1988) defines the term “functus officio” as follows: “Functus Officio: having discharged his duty. The phrase is used of an agent or official who, having performed his function, has no further authority in a matter.”
19. Further, The Australian Digest, Chapter Eleven, Part G – Estoppel, Division 3 - Intra Vires Estoppels notes: “The validity of a decision to revoke an earlier decision turns on the question of whether the decision-maker is functus officio once the decision is made. It does not turn on the applicability or otherwise of estoppel. (see Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 [92 ALR 93] (FC), Gummow J at 211). It is a question of statutory interpretation whether a particular power is only exercisable once and for all, or may be exercised from time to time. There is an ‘inconvenient common law doctrine ... that a power conferred by statute was exhausted by its first exercise’ (see Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 [92 ALR 93] (FC), Gummow J at 211, quoting from 27 Halsbury's Laws of England (1 ed, London: Butt), 131) which has been reversed in some jurisdictions where it is provided that a power conferred by statute may be exercised from time to time as the circumstances require unless the contrary intention appears. (see Acts Interpretation Act 1901 (Cth), s 33(1); Acts Interpretation Act 1954 (Qld), s 23). A number of cases have held that the exercise of a particular statutory power is final and irrevocable, particularly where the effect of the decision is to confer some right on a person. (see Re 56 Denton Rd Twickenham [1953] 1 Ch 51 [[1952] 2 All ER 799, [1952] 2 TLR 676], Vaisey J at 56-57; Brickworks Ltd v Warringah Shire Council (1963) 108 CLR 568 [37 ALJR 69], Windeyer J at 577; Export Development Grants Board v EMI (Australia) Ltd (1985) 9 FCR 269 [61 ALR 115], the Full Court at 276. See also the local government cases referred to in Re Isherwood [1991] 1 Qd R 13, Lee J at 19). If, as a matter of statutory interpretation, a decision is revocable the no-fettering principle applies and detrimental reliance on the original decision does not raise an estoppel preventing revocation. (see New South Wales Trotting Club Ltd v Glebe Municipal Council (1937) 37 SR (NSW) 288; Rootkin v Kent County Council [1981] 1 WLR 1186 [[1981] 2 All ER 227] (CA); Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 [92 ALR 93] (FC); Re Isherwood [1991] 1 Qd R 13. McDonald P, `Contradictory government action: estoppel of statutory authorities' (1979) 17 Osgoode Hall LJ 161 argues that the Canadian cases establish the contrary position, that detrimental reliance raises an estoppel which prevents a decision being revoked).”
20. The only decision under the Family Law Act, in relation to the doctrine of functus officio to which we have been referred, is the decision of Kazimierczak & Koch (1987) FLC 91-849 in which it was argued that “...because the judgment [of the Court] had been perfected by being drawn up and signed by the Registrar.......the court was functus officio and that no new order could be made for costs thereafter in the proceedings.” (page 76,418). The Full Court held that (page 76,418): “ Whatever may be the rule in other courts, the question of costs in the Family Court is regulated by sec. 117 of the Act. Since the power to award costs is derived from the statute any limitation as to the exercise of that power must be found within the statute itself. Proceedings for an order for costs fall within para. (f) of the definition of ‘matrimonial cause’ in sec. 4(1), that is to say, they must be proceedings ‘in relation to ... completed proceedings’. It may be that an application for costs is so remote in time from the original proceedings that it can no longer be described as relating to the proceedings which have been completed, but this is hardly the situation in the present case. It appears that the new r. 18 has been specifically inserted to impose a time limit to prevent applications for costs being made long after the conclusion of proceedings.”
21. If the making of final orders in proceedings under Part VIII does not exhaust the powers of the Court to make orders under s.117, as was held in Kazimierczak & Koch (supra) it is difficult to see how adjourning such proceedings without making any orders could do so.”
The Full Court discussed whether the order made had exhausted the court’s powers under Part VIII or derogated from those powers. It concluded it had not.
The current s.79A proceedings are a “matrimonial cause” that is now pending (Section 4(1)(ca) Family Law Act). The costs applications are a “matrimonial cause” (Section 4(1)(f)) which remain pending, and are able to be determined. (Section 117(2)). Thus I am satisfied that the court is properly seized of an application/s that must be heard. The question of being functus officio does not arise.
Is there a proper basis for disqualification?
Having satisfied myself that the court is properly seized of the outstanding applications, the question arises whether I should determine the applications. This requires that I consider the fate of the costs and s.79A applications separately. The husband appears to invite me to determine his cost application. He instructed his solicitors to list that application before me after the s.79 judgment. This accords with usual practice and is based on his view that the wife has achieved a poorer result from me that he offered her. Implicit in this application, as the wife’s counsel submitted, is an acknowledgment that the judgment ordered an outcome more favourable to him that he was prepared to settle for. Not only am I satisfied that I am the most appropriate judicial officer to determine the costs applications but also that it is my obligation to do so. Whilst another judicial officer could determine it, it would necessarily involve additional expense to the parties and the courts. Because I am the person most familiar with the proceedings, it is most cost effective and efficient for all concerned if I finalise this application. Should I refuse to hear the application the parties would be entitled to seek an order of mandamus.
Is there anything inherently problematic about my adjudication of the s.79A applications? Although both counsel made it clear that neither party asserts actual or reasonable apprehension of bias, I have considered myself whether as a consequence of findings made during the s.79 judgment I should disqualify myself. I have no doubt that irrespective of the parties’ agreement that there is no bias, if I were satisfied that the process could be seen to be flawed because of my findings that I could still disqualify myself of my own motion. During the judgement I made findings that accepted the wife’s evidence on some issues and not others. Similarly I made findings that accepted the husband’s evidence on some matters but not on others. Neither party was found to have been wholly truthful compared to the other being untruthful. In R v Watson; Ex Parte Armstrong (1976) 136 CLR 248 the High Court held that the fact that the trial judge had formed an equal distrust of both parties does not mean that apprehension of bias cannot still be apparent. That is because “It will prove more damaging to the party who wishes to establish a fact by means of his or her own unsupported evidence.” at 265.
Neither counsel suggests that their clients’ s.79A applications will rely on the uncorroborated testimony of their clients. As I apprehend the evidence the husband’s case is based upon documents provided by the wife to her mortgagee compared with documents and concessions she made that are matters of record. The wife says she can trace the sources of the additional monies to other people and that these people and/or financial records will make this plain. That is that the impugned monies came to her after the s.79 proceedings finished from other people keen to help her remain in the Fairy Meadow home. Hence neither party relies on their own uncorroborated testimony to make or resist the s.79A applications. In deciding that I should not disqualify myself, I am mindful of comments made by Kirby J in Johnson v Johnson [2000] HCA 48 at par 48:
“Such considerations lay behind the salutary warning given in Re JRL; Ex parte CJL (1986) 161 CLR 342 that judicial officers in Australia were obliged to discharge their professional duties unless disqualified by law. They were told not to accede too readily to suggestions of an appearance of bias, lest parties be encouraged to seek such disqualification without justification. Applications of that kind might be made in the hope of securing an adjudicator more sympathetic to that party’s cause.”
The husband’s counsel emphasised that I could not reconsider the findings I had already made. She referred to the limited application of the “slip rule” and the constraints upon a court revisiting earlier findings and orders. Recently in Milham and Stanford (2001) FLC 93-073 the Full Court cited with approval the decision of McHugh JA in Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 453 where he stated:
“The rationale of the slip rule also requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist: cf Brew v Whitlock (No. 3) (at 506). In general the test of whether a mistake or omission is accidental is that applied by Lord Herschell in Hatton v Harris (at 558) if the matter had been drawn to the court’s attention would the correction at once have been made?”
The husband’s counsel referred me to Ioppolo v Conti (1987) FLC 91-852 as authority for the proposition that once a trial judge has entered final orders the judge could not reconsider his or her own decision. What counsel misapprehended was that I have not been asked to re-consider my earlier s.79 decision, but rather to determine a different application. That is the factual matters and relevant law is different to that previously decided. True there will be reference to my earlier decision and evidence taken previously but the essential issue is quite different. In the first hearing my task was to determine the parties’ entitlement to property adjustment by reference to s.79. In this hearing I am asked to exercise an independent power to set aside or vary current s.79 orders and if appropriate make another order under s.79 in substitution for the order set aside (s.79A). (Prowse (1995) FLC 92-557.) In the event that I am satisfied that a s.79A ground is made I must then consider whether in the exercise of my discretion I should make different s.79 orders. Should I determine that I ought to do so, my decision will be based upon different evidence. Presumably including a larger asset pool as a consequence of the wife’s alleged non-disclosure of cash assets.
There is no basis upon which the proceedings should be transferred to the Family Court. The s.79A and costs applications are listed for hearing next week for one day. Nor was any good reason advanced why the husband should be excused from immediate compliance with the costs order made at the conclusion of the telephone directions hearing.
For these reasons I am satisfied that the husband’s application should be dismissed. Counsel agreed that submissions as to the payment of the costs, if appropriate, would be taken at a later date. I will hear any costs application arising from this application on 7 April 2003.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 2 April 2003
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