MTI v SUL [No 2]
[2010] WASCA 58
•31 MARCH 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MTI -v- SUL [No 2] [2010] WASCA 58
CORAM: PULLIN JA
BUSS JA
NEWNES JA
HEARD: 10 DECEMBER 2009
DELIVERED : 31 MARCH 2010
FILE NO/S: CACV 83 of 2008
BETWEEN: MTI
Appellant
AND
SUL
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram :MARTIN J
File No :PT 1025 of 2004
Catchwords:
Practice and procedure - Order of Family Court that appellant had to obtain leave to bring further proceedings - Application by appellant for leave to seek variation of existing parenting orders - Appellant failed to attend directions hearing - Application dismissed at directions hearing on ground that appellant no longer wished to proceed with it - Whether appellant denied procedural fairness
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: No appearance
Case(s) referred to in judgment(s):
Annamunthodo v Oilfields Workers' Trade Union [1961] AC 945
Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383
Dixon v The Commonwealth (1981) 61 ALR 173
I v L [2006] FCWA 141
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 261 ALR 220
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
MTI v SUL [2007] WASCA 240
MTI v SUL [2008] WASCA 261
MTI v SUL [No 3] [2008] WASCA 19
Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100; (1991) 102 ALR 339
PULLIN JA: I agree with Newnes JA.
BUSS JA: I agree with Newnes JA.
NEWNES JA: This is an appeal against a decision of the Family Court of Western Australia dismissing the appellant's application for leave to seek various parenting and other orders. The appellant is the father and the respondent is the mother of the child the subject of the proceedings. The respondent has taken no part in this appeal. The appellant is acting in person.
Background
The parties met in October 2001 and commenced living together in February 2003. They were married in an Islamic ceremony in August 2003. They separated on 7 February 2004. On 26 March 2004, a child of the relationship was born. The child currently resides with the respondent in Western Australia and has contact with the appellant at designated times.
Since the parties' separation, the appellant has filed a large number of applications in the Family Court, principally in relation to access and matters concerning the child's day‑to‑day care and accommodation. The appellant has been self‑represented throughout. The appellant has also instituted a number of appeals to this court against decisions relating to those applications.
It is unnecessary for present purposes to set out the history of those proceedings. It is sufficient to note that both the respondent and the appellant applied for substantive parenting orders and those applications went to trial before Martin J in the Family Court on 20 and 21 November 2006.
On 20 December 2006, Martin J delivered her decision on the applications. Her Honour discharged all previous parenting orders in relation to the child and made a number of orders concerning custody and access. In substance, her Honour ordered that the child live with the respondent who was to have sole responsibility for the child's care, welfare and development; that the appellant have access according to a detailed regime which her Honour set out; and that both parties be restrained from removing the child from Australia without the prior written consent of the other or the leave of the court. Her Honour further ordered that the appellant be restrained by injunction from instituting
further proceedings without the leave of the court. Justice Martin published her reasons for decision on 28 December 2006: I v L [2006] FCWA 141.
The appellant appealed against those orders. The appeal was dismissed by a single judge of this court, pursuant to r 43(2)(f) and (g) of the Supreme Court (Court of Appeal) Rules 2005 (WA), on the basis that none of the grounds of appeal had any reasonable prospect of succeeding: MTI v SUL [2007] WASCA 240. The appellant sought a review of that decision. The appeal was subsequently dismissed by a court of two judges: MTI v SUL [No 3] [2008] WASCA 19.
In the meantime, on 4 January 2008 the appellant filed an application in the Family Court, seeking a variation of the orders made by Martin J on 20 December 2006 and for leave to apply for various other orders. By reason of the orders made by Martin J on 20 December 2008, leave to bring the application was required. The application has been amended several times since it was filed. The current version, dated 15 April 2008, seeks leave to apply for orders, among others, concerning access and custody, and for the appointment of a solicitor for the child.
The application was listed for hearing before the primary judge on 24 January 2008. The appellant appeared in person at the hearing. There was no appearance on behalf of the respondent. The hearing was adjourned to 30 January 2008 so that the respondent could be served with all of the relevant materials and notified of the hearing date.
On 30 January 2008, the appellant did not appear, apparently having made a mistake as to the time of the hearing. A lawyer for the respondent appeared. On that occasion, the primary judge ordered that the child be separately represented at further hearings by an independent children's lawyer. The proceedings were adjourned to 17 March 2008.
The hearing on 17 March 2008 was attended by the appellant and a lawyer for the respondent. A solicitor appeared by telephone as the independent children's lawyer but advised the primary judge that she could not act for the child because she had a conflict of interest. Her Honour adjourned the hearing to 21 April 2008 on the basis that nothing could be done in the absence of representation for the child and a response had not been received from the Child Protection Department.
The appellant appealed against the order adjourning the hearing. The appeal was dismissed: MTI v SUL [2008] WASCA 261.
At the hearing on 21 April 2008, there were appearances by the appellant, the respondent's solicitor, and a solicitor, Mr Pacy, as the independent children's lawyer. In the course of the hearing, the appellant voiced a number of concerns he had about the circumstances of the child. The primary judge adjourned the hearing to 13 May 2008, so that a child expert could be appointed to report on the family dynamic. The primary judge ordered that, on or before 9 May 2008, each party was to file and serve a minute of orders sought in the event that leave to institute proceedings was granted.
On 13 May 2008, there were again appearances by the appellant, the respondent's solicitor, and Mr Pacy as the independent children's lawyer. A number of matters relating to the applications were canvassed at the hearing. One of the matters dealt with was the appointment of a child expert. After hearing the parties, the primary judge ordered that Professor Lipton, a child psychiatrist, be appointed as a single expert in the proceedings to provide a report to the court. Her Honour noted that, despite the order of 21 April 2008, none of the parties had filed a minute of orders sought and ordered that the time for the filing of minutes of the orders sought by each party be extended until after Professor Lipton's report was received. Her Honour suggested that the applications themselves be adjourned pending receipt of Professor Lipton's report. Mr Pacy proposed that the applications be adjourned to a date near the end of July on the basis that Professor Lipton's report was likely to be available before then. The following exchange subsequently took place between the appellant and the primary judge in relation to the date to which the matter should be adjourned:
Martin J: … There will be an order that the matter be adjourned for further hearing … What about Wednesday, 30 July at 9.30? Would that be alright?
…
The appellant: Wednesday is a problem for me. I have my daughter with me.
Martin J: Of course. Well, she can come into the child minding?
The appellant: She can, but I'd really rather not lose time with her. I don't see her that long. If it's possible Tuesday …
Martin J: Well it's a few minutes. We're talking probably …
The appellant: If it's just a few minutes I don't mind, but if it's going to be two or three hours or …
Martin J: No, no, it will be another of these early mornings - a few minutes. Then, you know, it depends what Prof Lipton says as to what happens from there, but you'll probably be heading to a trial down the track … (ts 10 ‑ 11)
In the event, the hearing was adjourned to 30 July 2008 at 9.30 am.
On 19 May 2008, the appellant wrote to the Family Court (relevantly) as follows:
I would like the issues that the child solicitor working on to be put on hold until the flawed system be looked at and the CCC disqualified or investigated the judge.
I have emailed the solicitor that his service is no longer required and I will pay for a new one myself once the issue [is] reopened upon the disqualification of the judge.
So the application of … the amended Form 2 relate to the child solicitor work to be stopped for now the court need to notify Legal Aid. (original emphasis)
On the same day, the Principal Registrar of the Family Court replied informing the appellant, in substance, that he would need to make a formal application for the orders he sought and to prosecute his application before the court.
On 26 May 2008, the appellant filed a further Form 2 application, seeking the following orders:
1.The amended Form 2 applications … in the court at the present time to be put on hold until the judge disqualify herself or the CCC investigate the issue or a higher court does that;
2.No further hearing before this judge to be listed by the Family Court;
3.The appointed Child Solicitor and his appointed child expert to be dismissed and a new Solicitor be appointed and paid for by the applicant when the matter proceeds.
That application was listed for hearing on 30 July 2008, the date to which the earlier application had been adjourned.
On 18 July 2008, the appellant wrote to the court (relevantly) as follows:
I would like the 30/7/08 hearing to be vacated for the following reasons:
1.The judge is refusing to disqualify herself;
2.The applicant (myself) does not wish to appear ever again before this judge.
3.She is still under investigation and it has not finished.
4.The appeal about her disqualification is not heard yet.
Please also note that I wish to relist:
(A)3 Contravention orders matters particularly heard on the 20/9/07 before Judges;
(B)All subpoenaed documents relating to trial to remain in court.
I will send a copy to the other party.
On 29 July 2008, the appellant wrote to the court again (relevantly) as follows:
Urgent to be filed today
I might not be able to attend the Court hearing schedule for 30/7/09 because I receive my daughter at 9am and I do not have a car anymore in this weather it is difficult to attend the Court with my daughter. I addressed the matter with the judge last time I was in Court but she does not seem to understand or comprehend … (original emphasis)
It appears that the appellant's letters of 18 and 29 July 2008 were put on the court file and at some stage brought to the attention of the primary judge.
At the hearing on 30 July 2008, there was no appearance by the appellant. A lawyer for the respondent appeared and Mr Pacy appeared as the independent children's lawyer. Mr Pacy informed the court that Professor Lipton's report was not available because the appellant was not prepared to co‑operate with Professor Lipton in the preparation of the report. Mr Pacy told the court it was his impression that the appellant did not want to proceed with the applications. He drew the court's attention to an exchange of emails he had had with the appellant in late May 2008. On 20 May 2008, Mr Pacy had sent an email to the appellant in the following terms:
Professor Lipton has spoken to me today. He tells me that he has contacted you for the purpose of making an appointment for you. I understand that you indicated to Professor Lipton that you were considering discontinuing your proceedings in the Family Court.
Please contact me to clarify what your position is in relation to this matter.
The appellant had responded on 26 May 2008 (relevantly) as follows:
I have already filed a form 2 to put the whole thing on hold and the other email [which Mr Pacy denied receiving] asked you not to do any further work on the case until I file in court. I'm asking you and your expert to stop doing any work now. I already filed form 2. Any more hours of [work] it will not be agreed for.
Mr Pacy said that the appellant's various amended applications should be dismissed. The respondent's solicitor said that his client would be happy for the applications to be dismissed.
The primary judge then made orders dismissing the appellant's applications (relevantly) in the following terms:
1.The Amended Form 2 applications be dismissed insofar as they seek leave to institute proceedings.
2.In the event the applicant files a further application for leave to institute proceedings, he is to file and serve an affidavit setting out his evidence in relation to why he has not facilitated preparation of the report by the single expert, Professor Lipton.
It appears that at the conclusion of the hearing, her Honour informed the independent children's lawyer and counsel for the respondent that brief written reasons would be published at a later date. Subsequently, reasons for judgment, dated 18 August 2008, were prepared and provided to the parties.
In her reasons for decision, the primary judge recited the history of the applications, the correspondence to which I have referred above, and the submission of the independent children's lawyer and counsel for the respondent that the appellant's applications be dismissed. Her Honour then said:
It is accepted that variation of the orders will probably be required as the child grows older, but since the [appellant] clearly does not wish to proceed with the substantive proceedings at present, and it is for him to pursue his application to seek leave, I accept that his application should be dismissed [23].
On 18 August 2008, the appellant filed an appeal in this court pursuant to s 211(3) of the Family Court Act 1997 (WA). Before coming to the grounds of appeal, it is appropriate to deal with an application made by the appellant in relation to the conduct of the appeal.
The appellant's application
On 1 December 2009, the appellant filed an application in the appeal seeking the following orders:
1.The case [be] addressed by [a] panel of judges from another state.
2.The matter [be] dealt with by submission rather than a book of appeal.
3.Justice Pullin [be] disqualified from dealing with the case.
On 3 December 2009, it was ordered that the application be heard with the appeal. I would dismiss the application.
The second of the orders sought can be dealt with briefly. At the time of the hearing an appeal book was in fact available although it did not contain all of the documents specified in r 38 of the Supreme Court (Court of Appeal) Rules 2005 (WA). In particular, some parts of the correspondence referred to at the hearing on 30 July 2008 were not in the appeal book. The appellant was informed that the Court of Appeal registry would obtain any missing documents from the file at the Family Court, and that was done. (That process also revealed the reasons for decision of the primary judge of 18 August 2009, which it appears were sent to each of the parties although they were not referred to by the appellant in the course of the appeal.) In the circumstances, the order sought by the appellant falls away.
Turning to the first and third orders sought by the appellant, it appeared from the appellant's oral submissions that the basis of the application was an apprehension of bias against him on the part of members of the Court of Appeal in general and of Pullin JA in particular. The appellant contended that he was not getting a fair hearing in this court, relying on the fact that seven out of eight appeals had been decided against him. He said that Pullin JA had either dealt with or had been a member of the court on most of those appeals, and that I had been a member of the court on some of the appeals.
In my view, there is no substance in the application.
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 decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492. The plurality in that case pointed out (493) that in applying that test 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.
Whilst a reasonable apprehension of bias may arise where, for instance, a judge has previously heard a case and made findings of fact which are relevant to the determination of a subsequent case, or has previously expressed views about the credibility or character of a person who is involved in a subsequent case, it could not arise solely because the party has been unsuccessful in a number of previous cases before that judge or those judges. Of itself, the fact that a person has repeatedly been unsuccessful does not suggest anything more than that the person has previously brought a number of cases which were without merit. If a reasonable apprehension of bias is to be made out something more would be required. Nothing has been advanced by the appellant. Nor would a reasonable observer consider that the appellant's previous lack of success might have the result that the members of the court might not bring an impartial and unprejudiced mind to the resolution of this appeal.
I would dismiss the application. It is necessary to turn then to the substantive appeal.
Grounds of appeal
The appellant appeals on six grounds:
1.The [primary judge] made an error of law and facts [in] dismissing the application.
2.There is no legal reason/s for the judge dismissal of the matter.
3.The judge had a conflict of interest in the matter because of her being reported to the CCC by the [appellant] because of her misconduct under s 121 of the Criminal Code Act and CCC Act section 54.
4.The [primary judge] is acting in a corrupt manner since she ever dealt with the case protecting the respondent and breaking the law.
5.The so called child specialist is unqualified to act in this case.
6.The child solicitor is focused more at condescending the appellant rather than doing the job he was employed to do which is protecting [the child's] best interests and have not raised any issue on the child but raised many issue[s] about the appellant.
The orders sought by the appellant are as follows:
1.An investigation into the corrupt behaviour of the [primary judge].
2.The [primary judge] be disqualified or dismissed of dealing with the case … ever again.
3.The case be reopened and dealt with by another judge.
4.Both the child solicitor and the specialists be dismissed from the case and new child solicitor be appointed by the appellant.
Disposition of the appeal
Although the grounds of appeal deal with various complaints by the appellant, it is evident that the substantive issue on the appeal is whether the primary judge erred in dismissing the appellant's applications on 30 July 2008.
The relevant principles can, for present purposes, be shortly stated. In an oft‑cited passage, Dixon CJ said in Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383:
For it is a deep‑rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi‑judicial proceeding he must be afforded an adequate opportunity of being heard. In Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 at 194 Byles J said that a long course of authority established 'that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature' … The general principle has been restated in this court with a citation of authority in Delta Properties Pty Ltd v Brisbane City Council (1955) 95 CLR 11 at 18. It is hardly necessary to add that its application to proceedings in the established courts is a matter of course (395 ‑ 396).
The principle that a party must have an adequate opportunity to be heard ordinarily requires that the party affected be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v The Commonwealth (1981) 61 ALR 173, 179; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 582, 628. In International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 261 ALR 220, French CJ referred in connection with judicial process to
the general requirement of procedural fairness that no order adverse to a party's property, liberty, or any other interest should be made without that party first having an opportunity to be heard. That opportunity includes the right to test and/or rebut evidence relied upon by the moving party and to make submissions on matters of fact and law [39].
In this case, in my respectful view, the appellant was not given an adequate opportunity to be heard on whether the applications should be dismissed. He had no notice that that was a matter which the court would consider on 30 July 2008. At the hearing on 13 May 2008, the appellant was told by the primary judge that the hearing on 30 July 2008 would be a short hearing, lasting 'a few minutes'. It is apparent from the comments of the primary judge that the hearing was intended to be for the purpose of giving further procedural directions. That, no doubt, was what the appellant understood the position to be. The appellant was therefore on notice that at the hearing procedural directions may be given, but he was not on notice that the court might consider whether the applications should be dismissed, much less that they might be dismissed on the ground that he no longer wished to pursue them.
It is not enough that the appellant had the opportunity of appearing at the hearing on 30 July 2008. The appellant must be taken to have known that, if he did not attend the hearing, directions of a procedural nature may be made in his absence. But the appellant could not be expected to know that the court would consider the dismissal of the applications on the ground that it did or, indeed, on any other ground. See Annamunthodo v Oilfields Workers' Trade Union [1961] AC 945.
It is not, in my view, to the point that the material relied upon by the primary judge emanated from the appellant. As Gummow J pointed out in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100; (1991) 102 ALR 339, 359, procedural fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant's interests which the decision‑maker proposes to take into account, even if the source of concern by the decision‑maker is not information or materials provided by another party, but what is seen to be the conduct of the applicant.
In this case, while the appellant was plainly aware of the existence of the material in question, he was not aware of the use to which it might be put or the interpretation that might be put upon it. He had no opportunity to deal with the conclusion that the primary judge drew from it. And the conclusion that the appellant did not intend to pursue the applications was by no means obvious from the material before the court. Indeed, with respect, I do not understand it in the way in which the primary judge apparently understood it. As I understand the import of that correspondence, the appellant wished the applications to be held in abeyance only until concerns he had about the judge were resolved and a new independent child solicitor and a new child expert were appointed. I do not understand the appellant to be suggesting in that correspondence, or otherwise, that he wished to abandon the applications.
It is not in doubt that the appellant was entitled to seek a variation of the orders previously made by the primary judge so long as he first obtained the leave of the court. The appellant having properly brought applications for such leave, in my respectful view it was not open to the primary judge to dismiss those applications without giving the appellant an adequate opportunity to be heard on whether they should be dismissed. That did not occur. It is not to the point that it may be open to the appellant to start again and make fresh applications for the same relief.
I would allow the first ground of appeal and set aside the orders dismissing the applications. The applications should be remitted to the Family Court for further hearing. On the material before this court, there is no basis for the order sought by the appellant that the applications should be heard by a different judge.
Ground 2 of the grounds of appeal appears to be simply an element of ground 1 and does not itself arise separately for determination. I would dismiss this ground.
The other grounds are not proper grounds of appeal and, in any event, in view of the decision I have reached on the first ground it is unnecessary to consider them. I would dismiss those grounds. I should note, however, that nothing that has been put before this court provides any foundation at all for those complaints.
Conclusion
I would:
(1)allow the appeal on the first ground of appeal;
(2)set aside the orders of the primary judge dismissing the appellant's applications;
(3)remit the applications to the Family Court of Western Australia for further hearing; and
(4)otherwise dismiss the appeal.
26
9
1