Nest and Nest

[2008] FamCA 526

FAMILY COURT OF AUSTRALIA

NEST & NEST [2008] FamCA 526

FAMILY LAW – COURTS AND JUDGES – Disqualification – application for judge to disqualify himself on the basis of apprehended bias – application refused

Family Law Act 1975 (Cth)

APPLICANT: Ms Nest

RESPONDENT: Mr Nest

FILE NUMBER: ADF 1320 of 2006

DATE DELIVERED: 13 May 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 13 May 2008

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

UPON NOTING that on the adjourned date of 17 June 2008 the Court will order a regime for the filing of trial affidavits and any other necessary trial material

IT IS ORDERED THAT:

1. The husband’s oral application for the Honourable Justice Burr to disqualify himself is refused.

1. The hearing date of 12 June 2008 in relation to the Form 2 Application in a Case filed by the husband on 2 May 2008 is vacated and the matter listed before the Honourable Justice Burr for hearing this day.

1. The wife is granted leave to issue within fourteen days [14] of the date hereof a subpoena directed to Ms T and Mr T to produce all documents relevant to the estate of the late Ms F Nest, such that the Court is provided with information that would assist in determining the parameters of the estate of the late Ms F Nest with the information to be provided to the Court on or before 10am on Wednesday, 11 June 2008.

1. The husband is granted leave to file and serve on or before 4pm on Friday, 13 June 2008, an affidavit of valuer Mr A, or such other valuer as nominated by the husband, such affidavit to be directed to the following matters:

(a)a review of the valuations prepared by B Company of the properties at S and K;

(b)details of the areas in which the valuer is of the view that errors have been made in the valuation;

(c)details, if any, of the valuer’s view as to how that impacts upon the valuation;

(d)the bases upon which the Court should consider accepting his view of the values;

and that to such an affidavit should be annexed full details of the valuer’s qualifications and curriculum vitae.

1. That the Form 2 Application in a Case filed by the husband on 2 May 2008 be dismissed.

1. Further consideration of the issues generally in these proceedings, but in particular the question as to whether or not any additional adversarial valuation evidence ought to be permitted, is adjourned to 9.45am on Tuesday, 17 June 2008 before the Honourable Justice Burr.

1. In the event that the husband has not filed and served the aforesaid affidavit, the wife be at liberty to attend the adjourned hearing by way of telephone link or in person as is her wish.

1. The time for the husband to file and serve the Financial Questionnaire be extended to 4pm on Friday, 13 June 2008.

1. The time for the husband to file and serve a sworn Financial Statement be extended to 4pm on Friday, 13 June 2008.

1. On the adjourned date of hearing of 17 June 2008 the husband advise the Court of any appointment time that he has made with Professor R and the time by which an opinion as to his injuries and prognosis by Professor R could be supplied to the Court.

1. On the adjourned date of hearing of 17 June 2008 the husband advise the Court

(a)of an expert who is in a position to undertake a calculation of any Capital Gains Tax liability possible on the real estate properties;

(b)if at all possible by that time, what Capital Gains Tax may be levied against the parties on the sale of the properties or the date by which that information can be provided to the Court

1. The husband pay the costs of securing the advice in relation to Capital Gains Tax aforementioned.

1. Leave is granted to the wife to make application to the Court for alternative evidence on applicable Capital Gains Tax.

1. By the commencement of the trial of these proceedings the wife do provide to the Court evidence of the current value of her net Long Service Leave entitlements.

1. The trial of the proceedings, being the second day of the Less Adversarial Trial process, be listed before the Honourable Justice Burr at 10am on Tuesday, 23 September 2008 with a time estimate of four [4] days.

1. A copy of the transcript of these proceedings be ordered and made available to each of the parties.

IT IS NOTED that publication of this judgment under the pseudonym Nest & Nest is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1320  of 2006

MS NEST

Applicant

And

MR NEST

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me today, on the basis of an oral application which I have allowed, an application by the husband that I disqualify myself from the further hearing of this matter.

2. Whilst not expressed by him in these exact terms, I understand his application to be on the basis of an apprehension of bias, clearly against him, on my part.  The basis of his application is many fold and is recorded on the transcript of these proceedings.  In summary though, his main concerns appear to be that I exhibited bias in relation to my appointment of single experts and in declining him the opportunity to call additional experts on the issues of valuation of the two pieces of real estate in dispute between the parties.

3. The next basis of his application was that I looked at inappropriate materials on the Court file and referred to a draft letter of instruction to a single expert valuer, as I recall, prepared by Registrar McMahon.

4. The husband points out now that it was not just the document itself that Registrar McMahon settled but in fact reasons why Registrar McMahon made the determination that he did.  I have little memory of that day or of what I did in relation to the matter save and except that I do recall that I was of the view that the approach in appointing a single expert and endeavouring to set down the terms and conditions of that appointment were entirely appropriate.

5. The other basis on which he suggests that there may well be an apprehension of bias on my part is that I have in the past accused him of stalling.  In my view there is ample evidence on the Court file of obfuscation and delay on his part in the matter being prepared for both interlocutory hearings and ultimately trial.

6. The matter first came before the Court after being transferred from the Federal Magistrates Court on 10^th May 2007, the proceedings having first been filed in the Federal Magistrates Court on 14^th September 2006.  As I was then, I am satisfied that the husband has indeed been guilty of a variety of stalling tactics and that it was his conduct which had led to the matter not being able to be processed at an earlier date, particularly in relation to the issues of valuations of relevant real estate.

7. The husband then indicated that he wanted Justice Dawe to hear the matter on the basis that she was the only Judge that had not dealt with it so far and that she was the senior Judge in the Registry.  She is indeed the senior Judge and essentially her duties in that regard are administrative as to the Registry.  She is senior by day of appointment as well, however, she exercises identical powers as do I and Justice Strickland in this Registry.  This matter has been assigned to my docket and if I am of the view there is no basis on which there could be a finding or a concern that there is an apprehension of bias, then it is a matter that is to remain with me. 

8. The husband then referred to the Registrar making orders in his absence.  That, of course, is not a ground that is relevant to his application that I be disqualified from the hearing of the matter.

9. The High Court has had to deal with this issue on many occasions and has laid down a number of principles and guidelines.  Essentially though the High Court has determined that a Judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that the Judge might not bring an impartial or unprejudiced mind to the resolution of the case.  That is the fundamental principle to be applied when a Judge considers whether or not he or she ought to disqualify themselves from sitting.

10. The rationale from that is clear and entirely appropriate and it is that there is of significant importance in there being public confidence in the fairness and impartiality of the administration of justice by the Courts.  That requires, in turn, not only that justice be done but that it be seen to be done.  The principle is to be applied from the standpoint of a fair-minded and reasonable observer who is acquainted with the relevant circumstances. 

11. It is my view that none of the grounds submitted by the husband raise an appropriate basis upon which I ought to be disqualified from the further hearing of the matter.  It is my view that from the standpoint of a fair-minded and reasonable observer acquainted with the relevant circumstances of this case, that there would not be any concern that I might not bring an impartial or unprejudiced mind to the resolution of the case.  Certainly it is the husband’s view but that view, though, is a very subjective view and in this jurisdiction and indeed in most jurisdictions, there are many orders made by Judges during the interlocutory stages of proceedings with which one of the parties disagrees.  The fact that they disagree and are unhappy with the result is not of itself an indicator that it is appropriate for the Judge to disqualify himself or herself from the further hearing of the matter.

12. In all of the circumstances and having taken into account the submissions put to me by the husband and my knowledge of the history of the matter to date, I refuse his application that I disqualify myself from the further hearing of the matter.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  13 May 2008