Medapati and Revanka (No 3)

[2017] FamCA 1184

FAMILY COURT OF AUSTRALIA

MEDAPATI & REVANKA (NO. 3) [2017] FamCA 1184

FAMILY LAW – PRACTICE AND PROCEDURE – Application for recusal – Where the Respondent sought to adjourn the hearing of a recusal application to obtain further evidence and the application was dismissed – Where the Respondent sought for the judge hearing the matter to recuse himself – Where the Respondent alleged actual bias on behalf of the judge – Where the application is dismissed.

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
Wentworth v Rogers [2002] NSWSC 1198

APPLICANT: Ms Medapati

RESPONDENT: Mr Revanka

FILE NUMBER: BRC 2961 of 2016

DATE DELIVERED: 15 May 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 15 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Balzamo

SOLICITOR FOR THE APPLICANT: Hunter Solicitors

THE RESPONDENT: In Person

Orders

1. The respondent husband’s application to adjourn his application for the Judge to recuse himself, is dismissed.

1. The respondent husband’s application for the Judge to recuse himself is dismissed.

2. Judgment in relation to the applicant wife’s Application in a Case filed 11 May 2017 is reserved to a date to be advised.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Medapati & Revanka has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2961 of 2016

Ms Medapati

Applicant

And

Mr Revanka

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 18 April 2017, in proceedings that were commenced in 2016, I heard and determined some competing interim applications in property adjustment proceedings and parenting Orders proceedings as between the husband and wife in this matter. On that day the wife was represented by a firm of solicitors who are on the record currently representing her, namely Hunter Solicitors and Mr Balzamo of counsel. The husband was represented by Mr Kilmartin, solicitor from the firm Adams Wilson.  The wife was present in court that day and the husband, who was out of the country at the time, attended the proceedings by way of a telephone connection between the courtroom and wherever he was located, which at the time I understood was somewhere in State X in the United States of America.

2. On that day because the husband was represented, he was told that he would not be able to speak to the Court through the phone but that his solicitor, Mr Kilmartin, would be heard on his behalf.  I reserved my decision at the end of that hearing and delivered my judgment and pronounced Orders consequential upon the reasons given in my judgment, on 21 April 2017.  Those Orders were reasonably lengthy and extensive. They dealt with property on an interim basis, property both in Australia and in other parts of the world; they dealt with disclosure; they dealt with parenting; and they dealt with interim litigation costs funding Orders. 

3. In the contested proceedings between the parties, it is clear that forum is an issue. The parties are Malaysian citizens, they were married many years ago in Malaysia I understand, and have been married for in excess of 20-25 years as I understand the evidence. Some five or six years ago they came to live in Australia and brought their children, the eldest one of which is now an adult, the younger still a child. They acquired, as I understand it, permanent residency from the Australian Government and have been living here pursuant to that permanent residency immigration status.  They acquired a number of properties in Australia in the time since they have lived here that add to their reasonably substantial property portfolio of real properties held both in Australia and Malaysia, but also in other parts of the world. It was in respect of all of those properties that certain injunctions were granted on 21 April 2017 on an interim basis at the wife’s application, principally to preserve the subject matter of the property adjustment proceedings as between the parties until further order.

4. It became apparent on the evidence that there are also proceedings underway in respect of property and parenting in the courts of Malaysia. Those proceedings were as I understand the evidence, commenced by the husband on a date, and I do not think this is in dispute, subsequent to the date upon which the wife commenced her property adjustment and parenting orders proceedings in this jurisdiction. 

5. On the previous hearing date, 18 April, the husband pressed for a stay of the wife’s proceedings that she commenced in this jurisdiction.  During the course of the hearing questions surrounding such applications and the determination of same were raised and discussed and the husband’s solicitor conceded when asked by the court that Australia should not be considered to be completely inappropriate forum within which to litigate the property and parenting proceedings. I went on in my decision to determine to dismiss the husband’s application for a stay of the wife’s proceedings. 

6. I raised during the hearing with the parties the fact that there was no application by the wife, which often is seen in such proceedings, for an anti-suit injunction restraining the husband from continuing with proceedings for property and parenting orders in Malaysia. Indeed, soon thereafter Mr Balzamo for the wife asked the Court if an oral application for an anti-suit injunction would be entertained and he was told fairly quickly that no such application would be.

7. Late last week, that is the week commencing Monday, 8 May 2017, the wife caused her solicitors to file a further Application in a Case and supporting affidavit material in which she now seeks an anti-suit injunction restraining the husband from continuing with property and parenting proceedings in Malaysia.  In her affidavit evidence in support of the application she deposed to some knowledge that the husband had recently filed an application for an anti-suit injunction against her in Malaysia seeking to restrain her from continuing with these proceedings in this court. She deposed to an understanding or belief that the decision in respect of that application was due to be handed down on Thursday, 18 May this week and therefore asked for this matter to be listed urgently, to be heard prior to that date.

8. The documents came before me as case management judge, not simply because I had previously heard the matter on the urgent application that was previously filed. I determined that the matter needed to be heard quickly in the circumstances and allowed it to be filed and listed it for hearing this afternoon. The Court is aware that the husband was served by way of email I understand it, received by him on the afternoon of Friday, 12 May 2017.  He appears today in person and informs the Court that he has withdrawn instructions from his previous solicitors and puts evidence before the Court demonstrating a great deal of dissatisfaction that he has in respect of the nature of the representation he received from Mr Kilmartin on the occasion of the previous hearing on 18 April 2017. Notwithstanding the short notice, the husband has not only got to Australia to appear here today, but also has filed a Response and an affidavit of evidence supporting his Response. 

9. In his Response he seeks a number of orders. The first one is that I be recused, but really he means that I recuse myself from hearing this matter on the basis of a derogatory unsubstantiated statement made against the Respondent in the trial that took place on 18 April 2017. He means by that in the hearing that took place that day. Before I go on to deal with any of the other orders that he seeks in his Response, I am required to determine his first application by way of a threshold application. But even before I begin to do that, I have to determine another application that the husband foreshadowed in his written affidavit, although he did not mention it in his Response by way of an order that he seeks. He also then spoke to it immediately upon being called to address the Court his afternoon. Indeed he has pressed the Court to adjourn the proceedings to enable him to obtain from Auscript a copy of the transcript of the last proceedings so that he can put evidence before the court once he obtains the transcript supporting his application for me to recuse myself. 

10. Now when I asked for him to provide some detail about that, and to make some submissions in support of his application for me to recuse myself, he went immediately to the subject matter upon which he says I should recuse myself, namely the making by me of a statement that he describes as derogatory or disparaging that I made during the course of the hearing on 18 April. Again when pressed further about that, given the fact particularly that he had not deposed in his affidavit that he filed, to the assertion in a more particular form, namely to the words that were used by me that he says support his application for me to recuse myself, the husband stated his recollection of the words that he relies upon. He told the Court that I had said something. He was more specific in his words which the transcript of today’s proceedings would reveal, but I will only use general words because I did not write down the exact phrase that he attributes to me. He said that I said something like, he can’t have been too astute if he is in a net $1-2 million debt situation.  Now, when the husband told the court this afternoon that they were the words that I used, or words something like that, that being my language and not his, he was more precise. I immediately recalled that I had said something to that effect on the last occasion on 18 April 2017. I have pointed out on the record this afternoon my recollection of the context in which I said that.  I informed the husband that having read all the affidavit material that was filed and relied upon in support of the competing applications that I heard and determined on 18 April, and having read them prior to the commencement of the hearing, that I have recalled him having said or deposed to an assertion that he was a very astute investor in his affidavit material and that I had commented in that context when being informed that the property pool of the parties is asserted, at least by the husband, to be negative $2 or $3 million, and I remarked to the effect of the words that he attributed to me, that he could not have been that astute an investor if that is the circumstance in which the parties find themselves in respect of their property interests.

11. The husband confirmed during further discussion today that he requires the adjournment because he requires the transcript to be available so that he can put the exact words that I used before the Court so that I might be able to justly determine his application for a recusal. As Mr Balzamo pointed out in his submissions, and as was confirmed by the husband, he has not sought to have the matter adjourned to enable him to obtain a transcript because he believes that there are other such statements that were made by me during the course of that hearing on 18 April that would support his application for recusal. He informs the Court that he relies solely on the remark in respect to the astuteness of his investment capacities. 

12. Having heard that concession from him, I determined today that it is not necessary to adjourn the proceedings to obtain the transcript so that the husband can obtain the transcript to put before me the exact words. He was quite clear when stating to me what were the exact words that he said I used and I am satisfied that I am well enough aware of the words that I used to be able to determine the recusal application this afternoon without adjourning it further. I refuse the application to adjourn the matter so that the transcript can be obtained and am satisfied that I can move on to determine the recusal application. 

13. The High Court’s decision in a matter of Johnson v Johnson (2000) 201 CLR 488, particularly referencing paragraph 500 of that decision, makes it clear that it is a fundamental rule of justice that an adjudicator, such as a judge like me, be free of actual or apprehended bias, that is, when deciding cases. The principals that are to be applied in relation to an application for recusal based on judicial bias are consistent and well established. With respect to the husband, although he was unable to take me or refer to any particular authority, such as Johnson, or any other of the relevant decisions of the High Court such as Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, to his credit, the oral submissions that he made in support of his application for recusal unsurprisingly, given his level of intelligence and business acumen, were close to the correct pronunciation of principle that applies as determined by the High Court in these cases such as those that I have referred to.

14. The husband submitted that in fact the words that I used on 18 April, reflect actual bias on my part. However, in the decision of Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, at 134, it was stated that in order to establish the existence of actual bias, the decision maker judge must be shown to have actually prejudged the case or to have acted with such partisanship or hostility as to show that they had a mind made up against the applicant which was not open to persuasion.

15. With respect to the husband, having heard his submission and notwithstanding that submission, I do not accept that he has established by my acceptance of the words that he attributed to me as having been said on that day, that I am actually biased and as such that I should recuse myself from the case. That said, of course it is appropriate to recognise that more frequently invoked and relevant to the proceedings currently before me today, in my view, albeit not in the husband’s, is a claim of apprehended bias. 

16. The test to be applied in a claim of apprehended bias as outlined by Chief Justice Gleeson, as his Honour then was, Justices Gaudron, McHugh, Gummow and Hayne, as their Honours then were, in Johnson 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. This test was affirmed by the plurality of the court, as it is called, in the decision of Ebner v Official Trustee in Bankruptcy that I have already cited. In that case, their Honours Chief Justice Gleeson, Justices McHugh, Gummow and Hayne set out the following two step process for the application of the test, at 345 of that decision. Their Honours said:

    First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits.  The second step is no less important.  There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.  The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated.  Only then can the reasonableness of the asserted apprehension of bias be assessed.

17. I also refer to further comments that were made by his Honour Justice Barrett of the New South Wales Supreme Court in Wentworth v Rogers [2002] NSWSC 1198, which was an unreported decision handed down by his Honour on 16 December 2002. His Honour referred to the High Court’s decision in Johnson and said that “the hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective”, not subjective, and “is founded in the need for public confidence in the judiciary and is not based purely upon the assessment of some judges of the capacity or performance of their colleagues”.

18. In Johnson, said Justice Barrett, they referred to two things that must be remembered: (1) the hypothetical observer is taken to be the reasonable objective person; and (2) the person being observed is taken to be a professional judge whose training, tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial.

19. In this particular case as I already said and as I remarked to the husband earlier, I had already read the material, the evidence that was being relied upon, I had heard some submissions it the case and what I was doing was responding or remarking, commenting upon a bold assertion made by the husband himself in his affidavit material that the content of the property pool in which he and the wife have interests that is to be considered when property adjustment orders between them are being made is attributable to his astuteness. 

20. I was not determining a property adjustment application as such; I was not in the process of hearing a final application for property orders where contributions were to be considered; so the remark I made was, with all due respect to the husband, not directly relevant to the matters that I was determining that day, nor do I see it, are they directly relevant to the matters that are being determined today.  The state of the common law on this particular issue is, as I have said, well settled.  It has been said, and I am not sure if I am getting the quote exactly right, that the days when a judge is required to sit as immutable as the sphinx are long gone.  Judges are indeed expected and required in the efficient administration of justice to robustly test argument and propositions and matters of fact that are put before them. 

21. I am quite comfortable in saying and satisfied to the extent necessary that that is all I was doing. I do not accept that the reasonable, objective, hypothetical observer sitting in the back of the court, giving me credit for being the professional judge whose training, tradition and oath require me to discard the irrelevant, the immaterial and the prejudicial, would be satisfied that what I said shows that I will not be able to bring an impartial mind to the determination of the proceedings that are before me.  Accordingly, I dismiss the husband’s application to recuse myself.

I certify that the preceding twenty (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 15 May 2017.

Associate: 

Date:  5 December 2019