MTI v SUL [No 2]
[2012] WASCA 87
•26 APRIL 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MTI -v- SUL [No 2] [2012] WASCA 87
CORAM: NEWNES JA
MURPHY JA
HEARD: 23 MARCH 2012
DELIVERED : 26 APRIL 2012
FILE NO/S: CACV 36 of 2011
BETWEEN: MTI
Appellant
AND
SUL
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram :MONCRIEFF J
File No :PT 1025 of 2004
Catchwords:
Practice and procedure - Application for judge to disqualify himself dismissed - No grounds for reasonable apprehension of bias shown - Application to hear appeal without appeal books dismissed - No reason shown for departure from usual practice of requiring appeal books - Leave to issue subpoena to Family Court refused
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms M M Wadsworth
Solicitors:
Appellant: In person
Respondent: Bannerman Solicitors
Case(s) referred to in judgment(s):
Bienstein v Bienstein [2003] HCA 7
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
MTI v SUL [2011] WASCA 267 (S)
Re JRL, Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
JUDGMENT OF THE COURT: The appellant has filed an application (the interim application) seeking certain interim relief in the appeal. In order to explain the circumstances in which that occurred and to put the relief sought in the interim application in its proper context it is necessary to set out some of the background.
Background
The appeal arises out of an application by the appellant in the Family Court of Western Australia to vary parenting orders previously made by that court in relation to the child of the former relationship between the appellant and the respondent.
On 15 and 16 March 2011, the application to vary the parenting orders came on for hearing in the Family Court before Moncrieff J. On 16 March 2011, the application was adjourned part‑heard at the completion of the appellant's case. The primary judge indicated that he wanted to hear further evidence, including evidence from the child expert who had been appointed in the proceedings by an order of the Family Court on 13 May 2008.
On 22 March 2011, the appellant filed this appeal against, among other things, the order of the primary judge to adjourn the hearing. After considerable delay, the appellant's case was filed on 19 August 2011. The respondent then brought an application to strike out the grounds of appeal on the basis that none of the grounds had any reasonable prospect of success and, further, that they were scandalous and vexatious and an abuse of process.
That application was heard on 25 November 2011. In a reserved decision delivered on 13 December 2011, this court ordered that the grounds of appeal be struck out. The appellant was given leave to file and serve an amended appellant's case containing amended grounds of appeal and submissions on or before 24 February 2012, failing which the appeal was dismissed. (An amended appellant's case was filed on 2 February 2012.)
The appellant sought an opportunity to make submissions on the costs of the application and it was ordered (without objection by the appellant) that written submissions be filed and served and that the question of costs be determined on the papers. The appellant filed submissions on 10 January 2012 and the respondent filed submissions in response on 27 January 2012.
On 3 February 2012, the appellant filed the interim application. In that application, he sought the following orders:
1.The respondent submission for cost of her last application to be dismissed or struck out;
2.A listed hearing to decide the cost matter;
3.Leave for the appellant to subpoena the Family Court of Western Australia for records;
4.The appeal proceeds or heard based on a submission not an appeal book.
In an amended application filed on 6 March 2012, the appellant sought a further order, namely:
5.The court orders be varied, the sentence stated 'ground of appeal to be dismissed' to be written off or varied to 'a new ground of appeal to be allowed to be lodged'.
On 6 March 2012, we ordered that the appellant was to pay the respondent 80% of her costs of the application to strike out the grounds of appeal, save for the costs of an affidavit she had filed: MTI v SUL [2011] WASCA 267 (S). In our reasons for decision we noted that the appellant had made a belated application to have an oral hearing on the question of costs but said that the application would not be entertained, for reasons we set out: [9] ‑ [13].
In the meantime, a registrar's notice to attend was issued notifying the parties that the interim application would be heard on 23 March 2012. A letter from the court dated 16 March 2012 informed the parties that only pars 3 to 5 of the interim application would be dealt with at that hearing as pars 1 and 2 had been dealt with in the reasons for decision of 6 March 2012.
The disqualification application
On 22 March 2012, the appellant filed a further amended interim application. That sought a further order, namely:
6.Judge Newnes to disqualify himself and interstate judges to be appointed.
At the hearing on 23 March 2012, the appellant complained that in recent months Newnes JA had dismissed almost every application the appellant had brought in the three appeals the appellant had before the court. He contended, in effect, that he reasonably believed Newnes JA was biased against him. We dismissed par 6 with reasons to be delivered subsequently. The reasons can be shortly stated.
While it is important that justice must be seen to be done, a judge should not disqualify himself or herself on the basis of bias or a reasonable apprehension of bias unless substantial grounds are established: Re JRL, Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352; Bienstein v Bienstein [2003] HCA 7 [36]. The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias 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 determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2 [78] ‑ [84], [132] and [139].
The appellant's contention that his lack of success on other applications heard by Newnes JA gave rise to a reasonable apprehension of bias cannot be accepted. Such an apprehension would not be held by a fair‑minded observer. The mere fact that a judge has previously decided cases adverse to a party does not provide a basis for a reasonable apprehension that the judge might not bring an impartial or unprejudiced mind to bear on the case at hand. Nothing more has been advanced by the appellant.
The appellant's application for judges from another jurisdiction to be appointed to hear the appeal was apparently based upon similar grounds. That is, that a reasonable apprehension of bias against the appellant arose from his lack of success in other appeals to this court. Again, the application is without any foundation.
It is for those reasons we dismissed par 6 of the interim application.
The disposition of pars 2 to 5 of the application
We dealt with the first two paragraphs of the interim application in our reasons delivered on 6 March 2012. We would simply add that nothing advanced by the appellant on the hearing of the interim application in respect of those matters would cause us to reach a different view.
The application for the appellant to be given leave to subpoena records of the Family Court of Western Australia must be dismissed. In the first place, the specific records the appellant seeks have not been identified. In the course of the hearing the appellant made reference to listing records of the Family Court as one of the categories of documents sought but precisely what he wanted remained unclear. Secondly, the appellant has not established how the records that he seeks (whatever they may be) are relevant to the proper determination of the issues on the appeal.
If the appellant wishes to obtain documents of the Family Court, it will be necessary for the specific documents or class of documents to be identified and for the appellant to set out why those documents are said to be relevant to the determination of the appeal. The further question of whether the records of the Family Court which are sought would be amenable to subpoena, or to the process set out in O 36B r 13(3) of the Rules of the Supreme Court 1971 (WA), is a matter that can be left until any such application is made.
We would not accede to the appellant's application for an order that the appeal be heard without appeal books. It is the practice of this court to require appeal books to be filed in all appeals, including appeals against interlocutory orders. That is to ensure that all of the material which is necessary for the determination of the appeal is available both to the court and the parties in a common, comprehensive and convenient form. It is a practice which is aimed at ensuring that appeals can be heard and determined effectively and efficiently. It will be departed from only in exceptional cases. We do not consider this to be such a case.
The final matter is the order sought in par 5 of the interim application. That is directed to the orders made on 13 December 2011 in respect of the respondent's application to strike out the grounds of appeal. Those orders, so far as relevant, were as follows:
1.The grounds of appeal be struck out;
2.The appellant have leave to file and serve an amended appellant's case containing amended grounds of appeal and submissions on or before 24 February 2012;
3.Unless, on or before 24 February 2012, the appellant do file and serve an amended appellant's case as specified in paragraph 2, the appeal is dismissed and the appellant is to pay the respondent's costs of the appeal to be taxed.
On the hearing of the interim application, the appellant said that he sought to have those orders amended to remove the order striking out the grounds of appeal and to replace it with an order simply giving him leave to file new grounds of appeal. It seems the appellant considered that such an amendment would have a bearing on the appropriate order as to costs on the respondent's application.
The application is misconceived. Such an amendment would be a matter of form which would have no bearing on the question of which party should bear the costs of the respondent's application. However the orders are framed, it is plain that the respondent was successful on the application and was entitled to an order for costs. The orders that were made properly reflect the outcome of the application.
In addition, the orders have now been settled and once an order has been settled it can be amended only in very limited circumstances. In the present case, there is nothing before us which would enable the court to amend the orders, even if it were minded to do so.
Conclusion
We would dismiss the application.
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