Nadkarni & Nadkarni
[2011] FamCAFC 160
•9 August 2011
FAMILY COURT OF AUSTRALIA
| NADKARNI & NADKARNI | [2011] FamCAFC 160 |
| FAMILY LAW - APPEAL – Application for disqualification – whether the Federal Magistrate erred in dismissing an application to disqualify himself from further hearing the proceedings – where the Federal Magistrate proceeded to determine the application for disqualification when it was not listed for hearing on that day – where the Federal Magistrate refused to hear submissions from the parties in relation to the application – where the Federal Magistrate had failed to have regard to all of the evidence in relation to the application – where the Federal Magistrate misunderstood the basis for the disqualification application – where the Federal Magistrate and the wife’s solicitor had previously had both a business and a personal association and where the relationship was now one of hostility – appealable error found – appeal allowed – re-determination of the application to disqualify the Federal Magistrate from further hearing the proceedings. |
| Family Law Act 1975 (Cth): s 94AAA(1)(b) |
| Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd, Qantas Airlines Ltd and Federal Airports Corporation (1996) 65 FCR 215 Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd and Others v Australia and New Zealand Banking Group Ltd (2000) 205 CLR 337 Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530 IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd and Ors [1999] SASC 249 Johnson v Johnson (2000) 201 CLR 488 Kennedy & Cahill (1995) FLC 92-605 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Webb v The Queen (1994) 181 CLR 41 |
| APPELLANT: | Ms Nadkarni |
| RESPONDENT: | Mr Nadkarni |
| FILE NUMBER: | PAC | 2980 | of | 2010 |
| APPEAL NUMBER: | EA | 158 | of | 2010 |
| DATE DELIVERED: | 9 August 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Finn and Strickland JJ |
| HEARING DATE: | 15 July 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 1 November 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 1421 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Lawson |
| SOLICITOR FOR THE APPELLANT: | A Law Firm |
| SOLICITOR FOR THE RESPONDENT: | Smythe Wozniak |
Orders
The appeal against the orders of Federal Magistrate Harman made on 1 November 2010 be allowed.
The orders be set aside.
Federal Magistrate Harman be disqualified from further hearing the proceedings (PAC 2980 of 2010) between the husband and the wife.
The proceedings be heard by another Federal Magistrate at the Parramatta Registry of the Federal Magistrates Court provided hearing dates at that Registry are available on or before 29 September 2011.
The application by the wife to adduce further evidence (filed 11 July 2011) being an affidavit by the wife’s solicitor (sworn 8 July 2011), be dismissed, save for the transcripts of proceedings in the Federal Magistrates Court on 2 August and 4 August 2010, which are referred to in paragraphs 44 to 47 of that affidavit and which are admitted as further evidence.
There be no order for costs in relation to the appeal.
The Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the appellant wife in respect of the costs incurred by her in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Nadkarni & Nadkarni is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 158 of 2010
File Number: PAC 2980 of 2010
| Ms Nadkarni |
Appellant
And
| Mr Nadkarni |
Respondent
REASONS FOR JUDGMENT
This is an appeal by Ms Nadkarni (“the wife”) who is a party to property settlement proceedings, which were filed in the Parramatta Registry of the Federal Magistrates Court, against orders made by Harman FM on 1 November 2010 sitting at that Registry.
By the first of the orders appealed his Honour dismissed an application by the wife that he should disqualify himself from further hearing the proceedings. By a further order, his Honour transferred the proceedings to the Sydney Registry of the Federal Magistrates Court to be allocated to the docket of a Federal Magistrate of that Registry.
At the hearing of the appeal, we were informed by Counsel for the wife that the appeal was supported by the other party to the property settlement proceedings, who is Mr Nadkarni (“the husband”); he made no appearance at the hearing of the appeal, nor did he file any submissions for the purpose of the appeal.
In both her original and amended notices of appeal the wife sought leave to appeal the orders challenged. Section 94AAA(1)(b) of the Family Law Act 1975 (Cth) establishes an appeal as a right against a Federal Magistrate’s dismissal of an application for his or her disqualification. Leave to appeal is therefore not required in the present case.
In order to understand the issues which arise in this appeal, it is necessary to provide the following factual background.
The proceedings on 2 August 2010
On 25 July 2010 an application for property settlement was filed on the husband’s behalf at the Parramatta Registry of the Federal Magistrates Court. A response to that application was filed on behalf of the wife on 29 July 2010 by her solicitor, Ms X.
On its first return date, being 2 August 2010, the matter came before Harman FM. At the commencement of that hearing, the solicitor for the husband, Ms K, made an oral application that the matter not be heard by his Honour in the following way:
Your Honour, the matter is one which [Ms X] appears in and on that basis, the matter cannot remain before you, and I understood when I filed this matter, it was before ---
(Transcript, 2 August 2010, page 2):
His Honour responded that it was “[Ms X’s] problem … not the court’s”.
Ms K then renewed her application saying:
… it is a matter where perceptions could cause problems, and it would be my application that your Honour not retain this …
(Transcript, 2 August 2010, page 2):
His Honour then proceeded (as requested by Ms K) to allocate a conciliation conference for the matter on 8 October 2010. (It should be noted that a solicitor other than Ms X appeared for the wife on 2 August 2010.)
When the matter did not settle at the conciliation conference on 8 October 2010, the matter was given the date of 1 November 2010 for a mention for further directions.
The wife’s application for disqualification and supporting affidavits
On 29 October 2010 (which was a Friday) an Application in a Case was filed on behalf of the wife by her solicitor, Ms X, seeking orders that Harman FM “forthwith disqualify himself from hearing this matter” and that “the matter be forthwith referred to another Federal Magistrate [sic] docket”. That application was supported by two affidavits, one by the wife, and the other by Ms D, who is, or was, an employed solicitor in Ms X’s firm. (The wife’s affidavit had not been included in the Appeal Book, but was provided to us at the hearing of the appeal.) The application was given a return date of 6 December 2010.
In her affidavit the wife deposed that she had been advised that her solicitor, Ms X, was formerly a business partner of Harman FM (when he was in practice), and that “the partnership ceased on or about 2007 with a continuation by way of receipt of financial settlement amounts continuing until on or about March 2008”. The wife then stated that she was seeking that Harman FM disqualify himself from the matter as she was “concerned there may be a bias in him appearing given the recent business partnership”.
In her affidavit the employed solicitor, Ms D, deposed that she was aware that the breakdown of the business relationship between the Federal Magistrate and Ms X was “extremely hostile”. She also stated that she was aware that Mr Harman (as he then was) had made a complaint about Ms X to the Legal Services Commission which had referred the complaint onto to the Law Society.
Ms D also annexed to her affidavit a copy of an email from Mr Harman sent on 27 July 2009 to at least 17 other legal practitioners, in which he acknowledged that between February 2004 and July 2007 he had “engaged in an extra marital relationship” with Ms X. It is unnecessary to quote further from the email. It need only be said that it was an extraordinary email denigrating Ms X.
The proceedings on 1 November 2010
When the matter came before Harman FM for further directions on 1 November 2010 (being the Monday after the Friday on which the wife’s application was filed), Counsel appearing for the wife advised his Honour that in the normal course of events hearing dates would now be allocated for the matter. But Counsel then referred to the application (filed on 29 October 2010) and said that that application had been made returnable on 6 December 2010.
The exchange which followed between the Federal Magistrate and Counsel is not easy to follow from the transcript. But there appears to have been some issue as to whether the application for disqualification was on the court file. Further, his Honour appeared to dispute that the application was listed on 6 December 2010, but he indicated that he was ready to deal with it on that day (being 1 November 2010) “even though there’s no application”.
His Honour then asked the solicitor for the husband, Ms K, some questions regarding the oral application for his disqualification which she had made on 2 August 2010. Again that discussion is not particularly easy to follow, although in the course of it, Ms K referred to the matters contained in Ms D’s affidavit.
His Honour then said:
All right. No need to hear any submissions. This is a course of action that will be taken with respect to the matter.
(Transcript, 1 November 2010, page 4)
Counsel for the wife then asked his Honour whether he was saying that he was not going to hear him in relation to the application. His Honour responded:
I don’t need to hear you because I intend to take a course of action that will accommodate everyone’s needs and desires.
(Transcript, 1 November 2010, page 4)
His Honour then proceeded to deliver reasons for judgment expressly stated to be in relation to the application filed by the wife on 29 October 2010, and made the orders which are the subject of this appeal.
The Federal Magistrate’s reasons for the orders appealed
The Federal Magistrate began his reasons by stating that these were proceedings in which the wife sought orders in an application filed on the previous working day (29 October 2010), and he then set out the precise terms of the orders sought in that application (as we have done in paragraph 12 above).
His Honour then referred to the oral application made by the husband’s solicitor, Ms K, on 2 August 2010 for his disqualification. Having observed that neither that previous application which he had dismissed, nor the one now before him reflected “any proper basis supported by law or authority for an application for disqualification” and that “ on the face of it” the issue now before him was res judicata, he continued:
5. … but I intend to deal with the matter, in any event, on the basis that the parties not be given any further opportunity to scandalise the court and as I do not intend to be distracted with nonsense of the nature as is raised in this case. I use the term “nonsense” advisedly.
His Honour then stated that in some fifteen or so other matters in his docket the solicitor now instructed by the wife appeared, and that there had been no disqualification applications in those matters. On the other hand he also stated that on 2 August 2010 when he had dismissed the first disqualification application in this matter, such an application had been made and dismissed in two other matters.
His Honour next set out the six paragraphs of the wife’s affidavit in support of the application before him, and in so doing observed that the business relationship between himself and the wife’s solicitor, which the wife relied on in her affidavit, had concluded two and a half years previously and was “accordingly substantially outside of this court’s protocol as regards business relationships”.
Having again referred to his dismissal of the earlier disqualification application in this case, his Honour stated that it was unclear which of the authorities in relation to apprehended bias was relied on in this case “when the sole evidence led in support of the application is a business relationship that ceased some two and a half years ago …”.
It must be observed that his Honour appeared at this point, and indeed throughout his reasons, to have overlooked the affidavit of the employed solicitor, Ms D, and its attached email. Notwithstanding that apparent oversight, his Honour did acknowledge in his reasons that he had had a personal relationship with Ms X, when he said:
17.The matter is not one in which it is sought to raise an issue on the basis of authorities such as, for instance, Kennedy & Cahill (1995) 19 Fam LR 173. Accordingly, I need not deal specifically with those issues, although I do make clear that there was most certainly a personal and intimate relationship between [the wife’s] lawyer and myself, as well as the business relationship. That terminated in 2006. That is a matter, it would seem, of great interest to the legal profession of Parramatta …
Later at paragraphs 24 and 25 of his reasons, his Honour again appears to have been under the misapprehension that the wife’s application for his disqualification was based only on the previous business relationship which he had had with the wife’s solicitor and not their personal relationship when he said:
24. But returning to the legal basis for this application which arises from, on the face of it, purely the business relationship that had terminated some two and a half years ago between the wife’s lawyers and me.
25. No comment is made regarding the personal and intimate relationship between that solicitor and I which, as I have indicated, ended more than four years ago. Presumably that was the basis upon Counsel for the wife corresponded with my chambers and sought to attend and address the matter in chambers. I do not propose to do so.
His Honour then made reference to, and discussed a number of authorities which set out the principles relating to disqualification of a judicial officer on the basis of an apprehension of bias (including R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Livesey v The New South Wales Bar Association (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd and Others v Australian and New Zealand Banking Group Ltd (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488; Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 and Dye v Commonwealth Securities Ltd (No 4) [2010] FCA 910). Again his Honour’s discussion of these authorities (at paragraphs 28 to 41 of his reasons) appears to focus on the issue of previous business relationships between a judicial officer and a litigant’s lawyer.
Having then made some critical comments regarding an attempt by Counsel for the wife to discuss (with the consent of the husband’s legal representation) this disqualification application with him in his Chambers, and also having suggested that discussion of his “private matters” between practitioners, or between practitioners and litigants could amount to “scandalising the court”, his Honour concluded:
48.I am not satisfied that the affidavit material filed in the case – and I do not propose to allow further oral evidence or cross-examination – satisfies whatsoever the tests identified by the above authorities. However, I am conscious that this is the second application in three months in the same matter, and accordingly I do not propose to allow this court to be scandalised by that behaviour, nor do I propose to allow the interests of legitimate litigants before this court to be similarly entrapped and enmeshed in the agendas of others.
His Honour then made the orders now appealed, whereby he dismissed the Application in a Case filed 29 October 2010 and transferred “these proceedings to the Sydney Registry of the Federal Magistrates Court to be allocated to the docket of a Federal Magistrate in that court …”.
By dismissing the application for his disqualification (filed on 29 October 2010) his Honour must be seen as having refused to disqualify himself from further hearing the property proceedings between the husband and the wife. Yet at the same time, and it might be said, somewhat inconsistently given his refusal to disqualify himself, he transferred the proceedings to another registry of the court for hearing by another Federal Magistrate, although, it should be noted, he gave no reasons for so doing.
It might be thought that even though his Honour refused to disqualify himself, the fact that he transferred the proceedings to the docket of another Federal Magistrate at another Registry, might render this appeal moot. We do not accept that this is so, if only because of the convenience to the parties of having their property settlement heard in the Registry in which the proceedings had been commenced, and which is in close proximity to their solicitors’ offices. This is a matter to which we will later return.
The grounds of appeal
The wife’s five grounds of appeal as contained in her Amended Notice of Appeal (on which she was permitted to rely at the hearing of the appeal) assert that his Honour erred in:
· failing to hear from the parties or permitting them to participate in the hearing on 1 November 2010 (Ground 1);
· delivering judgment in relation to the disqualification application where it was not listed for hearing (Ground 2);
· mistaking the evidence relied upon in support of, and thus the basis of, the disqualification application (Ground 3);
· failing to advise the parties of, or to permit them to call evidence regarding, the matters pertaining to his relationship with the solicitor for the wife, being: the fact that they were still on the record as Directors of a company; that he had referred the solicitor for the wife to professional disciplinary bodies; and that he had sent an email to at least 17 legal practitioners “denigrating” the wife’s solicitor and alleging that they had an extra-martial affair (Ground 4); and
· applying the test for disqualification (Ground 5).
It will be clear from our earlier description of the course of the proceedings before his Honour on 1 November 2010 that those proceedings took a course which was most irregular and in which the rules of procedural fairness were clearly breached. This is so because the wife’s application seeking his Honour’s disqualification had not been listed for hearing that day, but rather was listed for hearing on 6 December 2010. Nevertheless, his Honour proceeded to determine the application (as is clear from the introduction to his reasons delivered, and from his orders made, that day).
Moreover, he determined the wife’s application without hearing, indeed he refused to hear, submissions from the wife’s Counsel in circumstances in which he then proceeded to dismiss her application. Thus, the errors asserted by the first two grounds of appeal are clearly established, and accordingly those grounds have merit.
As to the complaints contained in the third ground and to a certain extent in the fourth ground, being that his Honour mistook the evidence relied on in support of the disqualification application, and hence misunderstood the basis of that application, it will be apparent from comments which we made earlier when canvassing his Honour’s reasons for judgment, that there is also substance in these complaints. As we observed in that earlier context, his Honour appeared to overlook the fact that the wife relied in support of the disqualification application not only on her own affidavit (which referred to the previous business relationship), but also on the affidavit of Ms D (which not only attached the email in which Mr Harman had acknowledged the extra-martial relationship, but also referred to his complaints made to professional disciplinary bodies about the wife’s solicitor). As Counsel for the wife submitted before us, had his Honour been prepared to hear submissions in support of the disqualification application, he may well not have misunderstood the evidence, and thus the basis of that application.
It was submitted by Counsel for the wife in relation to the complaint that his Honour erred in applying the test for disqualification (Ground 5), that although his Honour had correctly identified by reference to the authorities the test for disqualification, he had misapplied that test in that he had focused on the apprehensions of the parties themselves rather than those of a fair-minded lay observer properly appraised of all relevant circumstances. A reading of his Honour’s reasons certainly supports this submission.
It might also be concluded that his Honour’s mistaken understanding that the basis of the case for his disqualification was limited to his previous business relationship with the wife’s solicitor would, in any event, have caused a misapplication of the test for disqualification. It must, however, be remembered that in the course of his reasons for judgment, his Honour acknowledged (at paragraph 17 and again at paragraph 25) that he had had a personal relationship with the wife’s solicitor. But as he did not think that that was a basis for the application, he did not have regard to that matter when purporting to apply the test for disqualification.
We would venture to suggest that even had the previous personal relationship not been the basis of the disqualification application by the wife, it was a matter that for reasons which we will later explain, his Honour should have placed on the record and taken into account when he applied the test for disqualification. To the extent that Ground 4 is directed to that matter, it also has substance.
Given the substance that we have found in the grounds of appeal, and the practical matters concerning the future progress of this matter, which we will shortly mention, our interference with his Honour’s orders is required.
Before discussing the future course of this matter, we consider that we should also make some comment on the criticisms which his Honour appeared to make (in paragraphs 25, 26, and 43 to 45 of his reasons) of the attempt by Counsel for the wife to raise with him in Chambers (with the agreement of the husband’s lawyer) the matters upon which the disqualification application was based.
The practice of counsel approaching a judge in Chambers to advise of matters which might require the judge not to sit on a case was referred to without criticism by the High Court in Livesey v New South Wales Bar Association (supra) at 292. However, that case was decided over 25 years ago, and given the frequent involvement in court proceedings of self-represented litigants, particularly in this jurisdiction, we would agree with his Honour that such applications are probably now better made in open court.
Future course of the proceedings between the husband and the wife
The orders sought by the wife in her Amended Notice of Appeal were that the orders made on 1 November 2010 be discharged; that Harman FM be disqualified from further hearing the proceedings between the husband and the wife; and that “the matter be referred to another Federal Magistrate for hearing over two days at the Parramatta Registry provided such hearing dates are available on or before 29 September 2011”.
We were informed that the reason for the last mentioned order sought is that the parties have now been allocated a hearing date at the Sydney Registry (being 29 September 2011) which they would like to avail of in the event that an earlier date cannot be obtained at Parramatta. However, as we indicated earlier, it would be far more convenient for the parties to have their proceedings heard at the Parramatta Registry. But Harman FM is one of the Federal Magistrates at the Parramatta Registry and is to date not disqualified. It thus becomes necessary if only from a practical point of view, for us to re-determine the disqualification application in relation to his Honour (although there remains also the supervisory role of an appeal court as discussed in Kennedy & Cahill (1995) FLC 92-605 at 82,038).
Re-determination of the disqualification application
In support of the application for us to re-determine the application for the disqualification of Harman FM from further hearing the property proceedings between the husband and the wife, Counsel for the wife confirmed that the matters forming the basis for the disqualification application were:
(a) A business relationship had existed between the Federal Magistrate (in his personal capacity) and the wife’s solicitor.
(b)At and from the time of the wife’s solicitor’s departure from the Federal Magistrate’s legal firm, extreme hostility has existed between the Federal Magistrate and the wife’s solicitor, which was evidenced by:
(i) his referral of the solicitor to the Legal Services Commissioner for disciplinary matters;
(ii)the email which he sent to at least 17 legal practitioners “denigrating” the solicitor and alleging an extra-marital affair;
(iii)his conduct in relation to other matters involving the solicitor; and
(iv)his conduct on 1 November 2010.
(c)The present proceedings involve an acrimonious breakdown of the relationship between the wife and husband.
(d)The solicitor in question is the solicitor for the wife.
These matters can all be sourced (expressly or by clear implication) to the affidavit material which was before his Honour, to the transcripts of the hearings of the proceedings between the husband and the wife on 2 August 2010 and 1 November 2010, to his Honour’s reasons for judgment delivered on 1 November 2011, or to transcripts of other proceedings referred to in those reasons for judgment.
We mention in this regard that before us the wife sought to rely both in support of the appeal and for purposes of our re-determination of the disqualification application, on an affidavit from her solicitor, Ms X, which was sworn on 8 July 2011.
We are not prepared to receive that affidavit in support of the appeal for the reason that we have been able to determine that the appeal should be allowed without the necessity for that affidavit. Nor are we prepared to receive the affidavit for purposes of the re-determination of the disqualification application for the reason that the affidavit could not be said to contain any relevant updating information (not otherwise available to us from the court record). We are, however, prepared to receive and have regard to transcripts of the proceedings which were referred to in paragraph 7, 8 and 9 of his Honour’s reasons for judgment and which were referred to in the affidavit if only to better understand those reasons.
Accordingly, the application to adduce the further evidence contained in Ms X’s affidavit will be dismissed (save for the transcripts of certain proceedings on 2 August 2010 and 4 August 2010).
In her comprehensive written submissions in support of the re-determination by us of the disqualification application, Counsel for the wife relied on the formulation of the well settled test in this country for disqualification of a judge by reason of the appearance of bias provided by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson (supra) being:
11. … 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 …
It is also well settled that the hypothetical fair-minded lay observer would have knowledge of all relevant circumstances (see for example Deane J in Webb v The Queen (1994) 181 CLR 41 at [73] to [74] and Kirby J in Johnson (supra) at [53].)
It has further been explained by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner (supra), that the apprehended bias test requires a two step-process, being: first the identification of the matters which it is said might lead a judge to decide a case other than on its legal and factual merits; and secondly an articulation of the logical connection between the matters and the feared deviation from the course of deciding the case on its merits.
Counsel also relied on the identification by Deane J in Webb v The Queen (supra) of at least four distinct (but sometimes overlapping) categories covered by the doctrine of disqualification by reason of the appearance of bias. Those four categories are interest, conduct, association and extraneous information.
In addition to these general authorities in relation to the test for disqualification on the basis of an apprehension of bias, Counsel relied on a number of authorities concerned specifically with the relationship between a judicial officer and a legal representative of a party appearing before the judicial officer, notably Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd, Qantas Airlines Ltd and Federal Airports Corporation (1996) 65 FCR 215; Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530; Kennedy & Cahill (supra); and IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd and Ors [1999] SASC 249.
Apart from IOOF Australia Trustees (supra), these authorities are concerned with the situation where there is a relationship of friendship between the judge and the legal representative rather than one of hostility. However, the consideration which Merkel J gave in Aussie Airlines v Australian Airlines (supra) to the decisions in Kennedy & Cahill (supra) and Fingleton v Christian Ivanoff (supra) has relevance for present purposes (at page 224):
In Kennedy v Cahill the Full Court of the Family Court concluded that an undisclosed, serious and close personal relationship which was intended to continue between a Family Court judge and a solicitor for one of the parties in the matter being resolved by her, gave rise to a reasonable apprehension of bias. As it was conceded that the relationship, whether disclosed or not, was disqualifying there was no discussion as to why that was necessarily so. It is likely that that conclusion was arrived at on the basis that the close and serious relationship would be perceived to involve an emotional or relational interdependence which might reasonably be perceived to have a capacity to influence how the judge might approach the resolution of the matter to be decided. In that regard that case may be analogous to cases where it might be perceived to be inappropriate for persons in marital or analogous relationships to appear before their partner as an adjudicator.
The other case was Fingleton v Christian Ivanoff Pty Ltd. In that case a special magistrate was held to be disqualified from hearing a complaint by reason of the fact that in consequence of the amalgamation of several public service departments both the magistrate and the solicitor appearing to prosecute in the matter before him became members of the same department and subject to the same departmental head. At the time of the hearing the solicitor was acting as head of the Department.
Merkel J then went on to cite at some length from the judgment of Bray CJ in Fingleton v Christian Ivanoff (supra) (in which the relationship in question was held to be a disqualifying one). For present purposes, we need only cite the following passage from Bray CJ’s judgment (at page 534):
Nevertheless it seems to me that there must be cases where a judge would be disqualified because of his connection with one of the counsel appearing before him. I should think, for example, that he or she would be disqualified if his or her wife or husband sought to conduct a case before him …
In IOOF Australia Trustees Ltd (supra) Doyle CJ provided a detailed exposition of the position where the apprehended bias claim is based on hostile remarks by the judge about Counsel appearing before him, being remarks relating not only to the case then before the judge, but also to an earlier case in which that Counsel had appeared before the judge. Before us Counsel for the wife relied particularly on the following observations by Doyle CJ:
175. … I am conscious of the fact that, when one considers the relationship between judge and counsel in a case, and the manner in which the judge behaves in relation to counsel, there is equally an ill-defined line beyond which the indication of a critical or hostile attitude on the part of a judge can threaten the appearance of impartial justice. But the fact that the line is ill-defined does not remove the need for a court on appeal to distinguish between difficulties and tensions as between judge and counsel and a situation in which the relationship between judge and counsel threatens the appearance of impartial justice because it might cause the fair minded observer reasonably to apprehend that the judge will not fairly consider the case being present by counsel for the client.
176. There is another important point to be made here. The issue is the fair-minded observer's apprehension of the presence of bias, be it conscious or unconscious on the part of the judge. It is not to the point that the judge is convinced that the judge is not affected by the judge's attitude to counsel. Nor is it to the point that I am satisfied that the judge would not have been affected by the judge's attitude to counsel. The issue is the impact upon the lay observer of what passes between counsel and judge: Vakauta v Kelly(1989) 167 CLR 571-572. To say this is not to substitute mere appearance for the substance of the matter. Far from it. How things appear to a fair minded observer is important. That is why the test is to be applied according to what the fair minded observer would conclude.
In light of these authorities Counsel submitted that the fair-minded lay observer might reasonably apprehend that Harman FM might not bring an impartial mind to the resolution of the property proceedings between the husband and the wife when that observer was appraised of all relevant circumstances, being:
·that there had been a great deal of acrimony between the Federal Magistrate and the wife’s solicitor following the wife’s solicitor leaving the legal practice in which they had both worked;
·that the Federal Magistrate had made complaints about the wife’s solicitor to legal professional disciplinary bodies;
·that on or around 25 July 2009 (which was some 12 months prior to his appointment) the Federal Magistrate forwarded an email to 17 legal practitioners denigrating the wife’s solicitor and alleging an extra-marital affair;
·that on 2 August 2010 the Federal Magistrate made certain remarks in another matter about the wife’s solicitor upon the litigant advising the Court that she intended to instruct the wife’s solicitor, and in a separate matter on 4 August 2010 the Federal Magistrate had indicated that he will refer any practitioner who renewed an application for disqualification for disciplinary investigation (these two matters are identified in paragraph 8 of the Federal Magistrate’s reasons);
·that on 1 November 2010 his Honour “rushed” to deliver an ex-tempore judgment in circumstances where the matter was not listed for hearing and did not permit the parties to participate in the hearing; and
·that the substantive proceedings before the Court relate to the division of property following an acrimonious breakdown of the relationship between the wife and the husband, and that the solicitor in question is the solicitor for the wife.
We accept these submissions made by Counsel for the wife as well as her concluding submission that when the abovementioned matters are considered individually or cumulatively, the fair-minded lay observer might apprehend that this is one of the extreme cases where, as a result of the circumstances of the association between the Federal Magistrate and the wife’s solicitor, the Federal Magistrate might not bring an impartial and unprejudiced mind to the resolution of the question he is required to decide.
We would add that once it is accepted that a subsisting marriage, or other ongoing intimate relationship or association between a judicial officer and a lawyer is a disqualifying factor, it must also be accepted that once a marriage or similar relationship or association has broken down, that disqualifying factor must remain, at least for a reasonable period. This must be so because of the acrimony that so often follows such a breakdown, as a lay observer would well understand.
What is a reasonable period for disqualification following the cessation of an intimate relationship will be determined on a case by case basis and having regard to the perceptions of the hypothetical lay observer. In this case the uncomplimentary email sent by the Federal Magistrate only 15 months earlier clearly fell within the time-frame in which a relationship, albeit one of hostility, not closeness, existed.
Applying the two stage test in Ebner (supra), Counsel has clearly identified the matters which might lead the impartial but informed observer to form the view that the Federal Magistrate might decide the case other than on its legal and factual merits, and has articulated the logical connection between those matters and the feared deviation from the course of deciding the case on its merits.
We are thus satisfied that the test for disqualification on the basis of apprehended bias has been met, and that we should order that Harman FM be disqualified from further hearing the property proceedings between the husband and the wife.
Costs of the appeal
This is clearly a case in which there can be no order made in relation to the costs of the appeal, but also where it would be appropriate to grant the wife a certificate under s 9 of the Federal Proceedings Costs Act 1981 (Cth) in relation to such costs.
I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Strickland JJ) delivered on 9 August 2011.
Associate:
Date: 9 August 2011
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