Nicoli and Versace and Ors

[2014] FamCA 508

FAMILY COURT OF AUSTRALIA

NICOLI & VERSACE AND ORS [2014] FamCA 508

FAMILY LAW – COURTS AND JUDGES – Bias – reasonable apprehension of bias – extraneous information received in another matter – knowledge of proposed consent orders – where fair-minded lay observer might reasonably apprehend the Judge might not bring an impartial mind to the matter – judicial officer disqualified.

Family Law Act 1975 (Cth) s 117C

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488

APPLICANT: Mr Nicoli

FIRST RESPONDENT: Ms Versace

SECOND RESPONDENT: Mr Versace

THIRD RESPONDENT: Z Pty Ltd

FOURTH RESPONDENT: C Pty Ltd

FILE NUMBER: ADC 4576 of 2008

DATE DELIVERED: 10 July 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 10 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Starke

SOLICITOR FOR THE APPLICANT:	Starke Lawyers
COUNSEL FOR THE FIRST RESPONDENT	n/a
SOLICITOR FOR THE FIRST RESPONDENT:	In Person

COUNSEL FOR THE SECOND RESPONDENT: Mr Jordan

SOLICITOR FOR THE SECOND RESPONDENT: Jordan & Fowler

COUNSEL FOR THE THIRD AND FOURTH RESPONDENTS: Mr Reynolds

SOLICITOR FOR THE THIRD AND FOURTH RESPONDENTS: SRG Lawyers

Orders

1. Within seven [7] days the wife do file and serve a Notice of Change of Name and a Notice of Address for Service.

2. Within fourteen [14] days the wife do file and serve an affidavit to which is annexed a Medical Certificate from a qualified medical practitioner indicating that the wife has the ability and the mental capacity to represent herself in these proceedings or provide proper instructions to a legal practitioner.

3. The matter proceed for hearing on interim and final issues before another Judicial Officer on a date and time to be advised to the parties UPON NOTING that Justice Dawe and Justice Berman are both disqualified from further hearing this matter.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4576 of 2008

Mr Nicoli

Applicant

And

Ms Versace

First Respondent

And

Mr Versace
Second Respondent

And

Z Pty Ltd
Third Respondent

And

C Pty Ltd
Fourth Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a matter which comes before me as a result of the matter being listed for trial a considerable time ago, in early December 2013.  The trial did not proceed.  I was given a copy of proposed consent minutes, on the basis that the order would be made and that would resolve all issues.  That did not happen.  The matter has since been brought back before the Court on many occasions in an endeavour to resolve the matter on a final basis.  That has not been successful.

2. On previous occasions counsel have appeared for the wife and indicated to the Court that he was unsure as to the wife’s capacity to give him instructions to finalise the matter.  The solicitors for the wife have now ceased to act. The wife now appears in-person. 

3. There were proceedings in another matter before me, in which I was given information concerning alleged actions of the wife, which arose as a result of issues concerning counsel’s capacity to continue to act.  The information which I received in that matter could only be described as information which was extraneous to the information which was before the Court in this matter. Significantly it raised the issue of my continuing to hear these proceedings before the parties in this matter.

4. The Court is aware that the matter before the Court has been outstanding for some time, and finalisation of the matter promptly would be appropriate.  However, that factor has to be considered in conjunction with the well-known principles about a Judge disqualifying himself or herself, for the reasons set out in the High Court decisions often quoted of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and Johnson v Johnson (2000) 201 CLR 488. Those decisions make it clear that a Judge is disqualified if a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide.

5. It is of fundamental importance to ensure that the Court is seen to be both independent and impartial.  In this matter there is a significant risk that there would be an apprehension that, because of extraneous information I have received, there may be considerations concerning the reliability of evidence given in this Court.  Therefore the clear case is established that there would be an appearance or a risk of appearance, that I might not be able to bring an impartial mind to the assessment of the evidence in this matter.

6. I have considered previously the information I received in relation to the proposed consent orders. I received those proposed consent orders at the time with the consent of all parties, and therefore the provisions of the Family Law Act would bring about a situation where I would not necessarily be disqualified merely because I was aware that the offer had been made and disclosed to the Court (Section 117C). The information, however, of that proposed settlement, combined with the information that I received in the other matter, being the extraneous information, is such that I consider it is regrettably appropriate and necessary for me to disqualify myself in this matter.

7. I have taken into account that the matter, although listed for trial in December 2013, has been adjourned.  There is no current difficulty to relisting the matter, save and except that it will require to be relisted before a Judge who usually sits interstate.  My understanding is that can be done by way of interim hearings by telephone or video link and suitable arrangements made when the matter is ready for final trial, if that is necessary, for an interstate Judge to visit. 

8. I am not dealing with the Application in a Case filed by the second respondent in relation to the discharge of the orders in existence concerning the injunctions over the former matrimonial home, for the obvious reason that not only do I consider that I am disqualified but I also consider that it is inappropriate to deal with the application this morning whilst the issue of the wife’s mental capacity remains unresolved.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 10 July 2014.

Associate: 

Date:  15 July 2014