McMillan and McMillan (No 2)
[2016] FamCA 894
•25 October 2016
FAMILY COURT OF AUSTRALIA
| MCMILLAN & MCMILLAN (NO 2) | [2016] FamCA 894 |
| FAMILY LAW – PRACTICE AND PROCEDURE – where an application for the Judge to recuse himself is dismissed – where there is no reasonable basis for the Judge to recuse himself |
| Ebner v Official Trustee and Bankruptcy (2000) 205 CLR 337 Johnson & Johnson (2000) 201 CLR 488 |
| APPLICANT: | Mr McMillan |
| RESPONDENT: | Ms McMillan | ||||
| FILE NUMBER: | CSC | 355 | of | 2015 | |
| DATE DELIVERED: | 25 October 2016 |
| PLACE DELIVERED: | In Chambers |
| PLACE HEARD: | In Chambers |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | Last submission 5 October 2016 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITORS FOR THE RESPONDENT: | Williams Graham Carman Solicitors |
Orders
The application that Tree J recuse himself from hearing the husband’s application filed 12 September 2016 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym McMillan & McMillan (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: CSC355/2015
| Mr McMillan |
Applicant
And
| Ms McMillan |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 16 June 2016 Ms McMillan (“the wife”) filed an Enforcement Warrant seeking to recover certain amounts ordered to be paid to her by Mr McMillan (“the husband”) under several costs orders. On 12 September 2016, the husband applied to dismiss or stay the Enforcement Warrant, however in material filed with that application, foreshadowed that he intended to seek that I recuse myself from any dealing with his application. On 21 September 2016, when the husband’s application first came before me, I ordered a timetable for the parties to put on any material or submissions in support of their positions, and reserved the matter for decision in chambers. This is that decision and my reasons for it.
BACKGROUND FACTS
Between at least 1998 and 2008, the husband and wife were engaged in long and acrimonious litigation in this court, including at least one appeal. In the process the wife became the beneficiary of a number of costs orders against the husband, the first of which was made on 25 September 1998 by Barry J, and the last on 5 June 2008 by Benjamin J. I traversed the background to those orders in earlier reasons which I gave in these proceedings being McMillan & McMillan [2016] FamCA 387 (“first reasons”) at [4] and [13]-[21]. I adopt that discussion in these reasons.
On 15 June 2015 the wife filed an Enforcement Warrant in relation to both principal and interest allegedly due under those costs orders. By Application in a Case filed 14 September 2015, the husband, amongst other things, sought an order that the Enforcement Warrant be dismissed, struck out or stayed. He sought similar relief in a further Application in a Case on 9 November 2015.
It appears as though both applications first came on before me on 11 November 2015, when they were listed for hearing on 8 February 2016.
In the first reasons I explained the procedure which was adopted on that occasion at [9]-[12] as follows:
9. After some discussion with the parties, the issues that the husband appeared to wish to raise were distilled as follows:
1.Can a claim to set aside judgment for fraud be litigated in this Court under:
(a) the inherent jurisdiction;
(b) the accrued jurisdiction;
(c) S 79A; or
(d) some other power.
2.If so, were any, and if so which, judgments procured by fraud.
3.If so, should the Court now set aside those judgments.
4.If not, should the Court now stay enforcement of any, and if so which, of those judgments.
10. The difficulty was, however, that on 9 (sic, 8) February 2016, when the husband’s applications were listed before me for hearing, neither party was in a position to then argue issues 1 to 3, but were only prepared to argue issue number 4.
11. In those circumstances Mr Fellows, who appeared as counsel for the wife, urged that the court should proceed to determine issue number 4 on the assumption that either the court did not have a power to set aside a judgment for fraud, or alternatively, if it did, would not exercise it in the husband’s favour in this case. Mr Fellows argued that if the husband wished to bring such a claim, he may do so, but the immediate issue for my determination was whether or not there should be a stay of the Enforcement Warrant.
12. For his part, whilst not opposing the court hearing and potentially determining issue number 4, the husband sought a timetable permitting him to institute proceedings seeking to set aside the several judgments for fraud, nominating a period of at least 60 days for such an application to be brought.
On 23 May 2016 I delivered the first reasons in relation to the father’s Applications in a Case. I set aside the Enforcement Warrant on the grounds that it included a claim for interest which I declined to enforce. I indicated that a fresh Enforcement Warrant for the proper principal sum, and which claimed no interest, would need to be filed by the wife. Further, at [77], I indicated that “[i]f the husband wishes to pursue his allegations of fraud, then he will need to bring a further application to stay enforcement, or bring separate proceedings in a court with the necessary jurisdiction.” Otherwise I dismissed the father’s Applications in a Case filed 14 September and 9 November 2015.
RELEVANT LEGAL PRINCIPLES
In Johnson & Johnson (2000) 201 CLR 488 at 492-3 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:
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 (which, in the present case, was said to take the form of prejudgment) 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”.
13.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.
(footnotes omitted)
Later in Ebner v Official Trustee and Bankruptcy (2000) 205 CLR 337 at 348 Gleeson CJ, McHugh, Gummow and Hayne JJ said:
The principle to be applied
19.Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
20.This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
21.It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
22.The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
23.Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.
THE HUSBAND’S APPLICATION
In the husband’s affidavit filed 29 September 2016 (but inexplicably stamped as having been filed on 12 September 2016), he articulated the basis upon which he argues I should recuse myself. Some of his claims are a little difficult to understand, but doing the best I can it appears as though he makes the following points:
·In conducting the hearing on 8 February 2016 in the way that I did, I did not deal with the alleged dishonesty of the wife and her lawyer in obtaining the several costs orders, and perhaps their dishonesty more generally (which the husband refers to as “documented evidence of fraud”) and allegedly expressed disinterest about such dishonesty and fraud;
·In that hearing I incorrectly identified that the “crux” of the husband’s case was not the alleged fraud of the wife and her solicitor, and in doing so, denied the father the opportunity to litigate that claim;
·That having not dealt with the fraud issue on 8 February 2016, the husband cannot be confident that I would now deal with it this time;
·That I did not properly assist the husband as a self-represented litigant, and particularly firstly, that I did not assist him to issue subpoenae to various witnesses (and deferred discussion about it in November 2015); secondly that I did not permit or assist him to cross-examine the counsel for the wife on 8 February 2016; thirdly that I did not assist him to examine old court files; and fourthly that I did not properly explain to him that he was then in a trial;
·That in the first reasons I failed to deal with the husband’s application for a publication order.
Even if one were to take all of the husband’s allegations at their highest, and assume that they were all true and correct (which patently, they are not), there is nothing in them which would enable a reasonable observer to conclude that I had pre-judged the husband’s case as mounted by his application filed 14 September 2016. Particularly there is nothing in his assertions which is indicative that I would not bring an impartial mind to the resolution of the questions which I am required to decide.
Whilst accepting that some of the relief the husband sought in 2015 was likely beyond jurisdiction of the court, I specifically identified in the first reasons the logical framework against which the husband’s claims of fraud could be litigated, and indicated at [77] that if he wished to pursue those allegations, he would either need to bring a further application for a stay (if a further Enforcement Warrant issued), or bring separate proceedings to seek to impeach the various costs orders on the grounds of fraud.
It is simply fanciful to say that on 8 February 2016 I precluded the husband from litigating such claims. I attempted to make the efficient use of a listing of the hearing of the matter in a way which sought to resolve that part of the controversy between the parties which could then be litigated.
I am not satisfied that there is any reasonable basis for me to recuse myself contained in the matters raised by the husband.
There is, however, one additional matter which I should discuss, although it is not raised by the husband, and that is that in the first reasons, I concluded that the husband had not persuaded me that it was inequitable to then enforce the costs orders, insofar as there was outstanding principal owing under them. In that sense, on one view, an aspect of the potential arguments that might be advanced by the husband in his present application has already been determined by me. However I am not satisfied that it has been determined in a way which requires me to recuse myself. Particularly:
·No appeal was brought by the husband from that decision (even accepting that, given that I stayed the Enforcement Warrant in its then form, an appeal may have been problematic), and hence the parties remain bound by my determination;
·Since the first reasons (delivered 23 May 2016), further time has elapsed, and hence although substantially overlapping, the period under consideration in this current litigation is not identical to that which I considered in the first reasons;
·The husband makes no argument that I should recuse myself on this basis, but rather his complaints are as discussed above;
·There would be something akin to “judge shopping” by the husband if he were now to seek to recuse myself on this basis.
I am not persuaded that the husband has showed sufficient justification for me to recuse myself. His application that I do so is therefore dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered 25 October 2016
Associate:
Date: 25 October 2016
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