Pencious and Searle (Disqualification)
[2016] FamCAFC 150
•4 August 2016
FAMILY COURT OF AUSTRALIA
| PENCIOUS & SEARLE (DISQUALIFICATION) | [2016] FamCAFC 150 |
| FAMILY LAW — COURTS AND JUDGES — Disqualification — Application by husband for disqualification of judge on ground of apprehended bias — Application brought after hearing — Application concerns the Chief Justice as one of three judges on appeal bench — Where the husband had sent a letter of complaint concerning a Registrar of the Court to the chambers of the Chief Justice — Complaint was referred to Deputy Chief Justice in accordance with internal procedure — Complainant was advised the complaint would be considered at the conclusion of the current proceedings — Complaint contained in appeal book and thus available to all members of the bench prior to hearing of the husband’s appeal — Application dismissed | |
| Family Law Act 1975 (Cth) Public Service Act 1999 (Cth) |
| JRL; Ex parte CJL (1986) 161 CLR 342 |
| APPELLANT: | Mr Pencious |
| RESPONDENT: | Ms Searle |
| FILE NUMBER: | MLC | 11069 | of | 2008 |
| FIRST APPEAL NUMBER: | SOA | 40 | of | 2015 |
| SECOND APPEAL NUMBER: | SOA | 45 | of | 2015 |
| DATE DELIVERED: | 4 August 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bryant CJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 May 2015 |
| LOWER COURT MNC: | [2015] FamCA 504 [2015] FamCA 608 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Smith |
| SOLICITOR FOR THE RESPONDENT: | Tasiopoulos Lambros & Co |
Orders
The appellant’s application filed 9 March 2016 seeking an order that the Honourable Chief Justice Bryant be disqualified from hearing Appeals SOA 40 and SOA 45 of 2015 is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pencious & Searle (Disqualification) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 40 of 2015; SOA 45 of 2015
File Number: MLC 11069 of 2008
| Mr Pencious |
Appellant
And
| Ms Searle |
Respondent
REASONS FOR JUDGMENT
On 29 February 2016 the Full Court comprising Bryant CJ, Aldridge and Kent JJ heard an appeal by the appellant husband, against orders of Macmillan J made on 22 May 2015. The husband was given leave to appear by telephone at the hearing of the appeal and did so. The wife was represented by counsel.
Judgment was reserved and shortly after the conclusion of the appeal hearing the husband complained that the Chief Justice should be recused from further participation in the appeal as there was a perception that she might not bring an impartial mind to the determination of the appeal.
On 29 February 2016, the same day the appeal was heard and judgment reserved, the husband wrote to the Appeals Registrar asserting that he was not aware during the hearing that Bryant CJ was presiding. He asserted that upon seeing the court list on the website following the appeal hearing, he realised for the first time the Chief Justice had been sitting and wished to object to her hearing the matter. The basis for the objection was that he had made a complaint to the Chief Justice concerning the conduct of an officer of the Family Court of Australia and that that complaint had not been resolved by the time the appeal was heard. He asserted that the Chief Justice was aware of his outstanding complaint and the issues that it raised and that a fair minded reasonable observer may apprehend that as a result the Chief Justice could not have brought an impartial and unprejudiced mind to the appeal proceedings on 29 February 2016.
The husband was informed by the Appeal Registrar that if he wished to apply for disqualification of the Chief Justice he must do so by application in an appeal.
On 9 March 2016 the husband filed an application in an appeal seeking:
1.that the Court reopen the hearing and accept his application in an appeal and affidavit in support; and
2.that the application for disqualification of Chief Justice Bryant be considered.
Both husband and wife agreed that the matter could proceed by way of written submissions and on 15 March 2016 the Court made the following orders:
1.Insofar as the application in an appeal filed on 9 March 2016 seeks to re-open the proceedings (SOA 40 of 2014 [sic] and SOA 45 of 2014 [sic]), the application be allowed to the extent necessary for Chief Justice Bryant to consider the application that her Honour disqualify herself from these proceedings.
2.By close of business on Wednesday, 30 March 2016, the appellant file and serve upon the respondent (through her solicitors) written submissions in support of the application that the Honourable Chief Justice Bryant disqualify herself from these proceedings.
3.The respondent have fourteen (14) days from the date on which she is served with the appellant’s written submissions to file and serve upon the appellant either written submissions in response to the appellant’s written submissions or a brief written advice that she does not wish to file an [sic] written submissions in response.
4.In the event that the respondent does file and serve written submissions pursuant to Order 3 of these orders, then the appellant shall have seven (7) days from the date on which he is served with such submissions to file and serve submissions in reply, in the event that he wishes to do so.
Written submissions were filed by the husband on 24 March 2016.
On 15 April 2016 the wife’s solicitors wrote to the Appeal Registrar advising that in their view the husband had not identified any grounds which would give rise to an apprehension of bias on the part of the Chief Justice and in the circumstances they did not seek to file any submissions in reply.
The husband filed brief submissions in response to that letter on 26 April 2016.
Again, by letter dated 10 May 2016, the wife’s solicitors confirmed that they did not intend to file any submissions in response to those filed by the husband.
Accordingly, the material before the Court comprises the husband’s submissions filed 24 March 2016 and 26 April 2016.
The issues raised by the husband
First, the husband addresses the question of why he did not raise his objection to the Chief Justice sitting on the appeal when the appeal was heard. He says “[t]he telephone connection was plagued by intermittent static throughout the hearing which made the hearing of proceedings audibly problematic at times.”[1]
[1] Husband’s affidavit filed 9 March 2016 at paragraph 4.
He asserts that, although the court officer called him to announce that the Court was ready to hear the matter, he did not clearly hear the names of the bench and there was nothing else during the proceedings to identify that the Chief Justice was sitting. I do not intend to dwell upon nor deny the husband the opportunity to agitate his application simply because he did not raise it during the appeal hearing. I concede readily that there was static and the line was not by any means a perfect connection. But more importantly the husband raised the issue on the same day albeit after the conclusion of the appeal, and made his application in a timely way. In my view it would be unreasonable to prevent him from agitating his application simply because he did not raise it during the hearing.
The subject matter of the disqualification application
The gravamen of the husband’s complaint is tied up intractably with the substantive hearing before Macmillan J and the appeal itself. However, as expressed the husband asserts that he had written to the Chief Justice on
6 January 2015 to relay in detail concerns that he had with the conduct of a Registrar of the Family Court in the course of proceedings to which he was a party which he asserts are “ongoing and unresolved”.[2]
[2] Husband’s affidavit filed 9 March 2016 at paragraph 8.
He further asserts that following receipt of his letter by the Chief Justice’s chambers, he received a reply from the Deputy Chief Justice of the Family Court dated 12 February 2015 acknowledging receipt of his letter and advising that the issues raised in his letter to the Chief Justice had been referred by her to the Deputy Chief Justice for reply. He says “[t]o date, I am still awaiting a final reply from the Deputy Chief Justice”.[3]
[3] Husband’s affidavit filed 9 March 2016 at paragraph 9.
The husband then asserts that following his letter to the Chief Justice and the reply from the Deputy Chief Justice he wrote to the Appeals Registrar of the Family Court of Australia and provided copies of all of the correspondence referred to above. All the correspondence referred to was in evidence before the Court and contained in the appeal books for the hearing of the matters on
29 February 2016. They appear in appeal book volume 2, pages 228–244.[4]
[4] Husband’s affidavit filed 9 March 2016 at paragraph [12].
Before setting out this correspondence I refer particularly to the affidavit sworn by the husband on 17 March 2015 and filed on 24 March 2015 in which he described his concerns and what he had done about them. He says as follows:[5]
4.On 21 October [2014] I wrote to the Australian Attorney General outlining concerns with proceedings involving myself before this Honourable Court and in particular the Costs Assessment Conferences with Registrar Riddiford. Annexed hereto and marked “L1” is a true copy of that letter.
5.On or about 27 November [2014] I received a reply from the Australian Attorney General referring me to refer these concerns to the Chief Justice of the Family Court of Australia. Annexed hereto and marked “L2” is a true copy of that letter.
6.After much hesitation and only because of the Attorney General’s reference, on 6 January 2015, I wrote to the Chief Justice of the Family Court of Australia, the Honourable Chief Justice Diana Bryant AO, outlining these serious concerns. Annexed hereto and marked “L3” is a true copy of that letter.
7.On 27 January 2015, I filed an Application and supporting documentation, including Affidavit [sic] in support and Notice of Appeal, to appeal the Orders of the Honourable Justice Cronin of 5 April 2015.
8.On or about 10 February 2015 I was informed that the Costs assessment conference had been set down for further hearing for 11 March 2015 before Registrar Riddiford. The last hearing of this matter was on 21 March 2014. [T]he matters arising out of that hearing on 21 March 2014 are referred to in my Affidavits filed with the Court 27 January 2015 & 10 February 2015.
9.On or about 12 February 2015, I received a reply letter from the Deputy Chief Justice of the Family Court of Australia, the Honourable John Faulks. In particular the Honourable Chief Justice [sic] states that the matters I raise have been referred by his Honour to the attention of the Principal Registrar. Annexed hereto and marked “L4” is a true copy of that letter.
10.On 20 February 2015, I wrote to the Senior Registrar of the Full Court Registry (Melbourne) seeking that the Costs Assessment be adjourned until such time after the Application filed 27 January 2015 and the investigations of the Deputy Chief Justice are determined. Annexed hereto and marked “L5” is a true copy of that letter. A copy of all this correspondence was sent to the wife.
[5] Appeal book volume 2 at page 223, Husband’s affidavit sworn 17 March 2015 and filed 24 March 2015 at paragraphs 4–18.
Thereafter the husband goes on to detail what happened at the costs assessment on 11 March 2015 and complains about failure of Registrar Riddiford to adjourn the hearing as well as the Registrar’s failure to disqualify himself upon being asked to do so. The husband asserts ultimately (at paragraph 17) that the comments and decisions of Registrar Riddiford demonstrate the Registrar did not bring an unbiased mind to the proceedings.
However, for the purpose of the current proceedings, nothing that occurred after 11 March 2015 is the subject of the letter of complaint by the husband upon which he bases his objection to me hearing the appeal.
The letter to the Attorney-General dated 21 October 2014 says:
Dear Sir,
I am writing to you in your [sic] concerning a very serious matter that exists within the Family Court (Melbourne). I have been involved in protracted proceedings for the last 6 years.
Approximately 5 years ago I made an application to Injunct [sic] a legal practitioner from proceedings because of a conflict of interest and conduct. This was a legal practitioner who has a very long tenure in this Court. The matter was heard over 8 days lasting 12 months. During this time I was subject to a lot of pressure to desist with the application. It was said to me personally that “this isn’t the way we run things here” and “the Court is not happy with you making this application”. “[T]here’s a group of us who decide what goes before the Court and get things done”.
Without going into specifics (I am unsure if I legally can) I received an adverse judgement [sic] followed by an oppressive indemnity Costs order.
During the substantive hearing that same legal practitioner “coached” a witness to answer questions whilst they were in the witness box. My Counsel objected to the Judge, who remained silent on the matter. I have a transcript which bears this out. Again I am not sure if I can show this.
Approximately 12 months after the orders were handed down, I received documents from the legal practitioner concerned which showed that evidence given by that legal firm’s office in Court was false and the Court had been misled. Ostensibly the legal firm and its Counsel lied to the Court. Following this I put these serious matters before the Full Court and to this day I have not received an answer from the Court.
As a result of the Costs Conferences I was ordered to attend, I received aggressive and hostile treatment at the hands of a Registrar of the Court who conducted the Conferences. These events took place in the presence of my Counsel. It was made clear to me and my counsel that the Court was displeased at my application to Injunct [sic]. These vents [sic] culminated in a Registrar telling my Counsel that he was aware of Confidential legal advice that I was given concerning the making of that application. I have attached the correspondence that I sent my solicitor immediately after I witnessed this exchange. The exchange was confirmed to my solicitor by Counsel also attached. I have referred these matters to the Legal services [sic] Commissioner of Victoria, IBAC of Victoria and to the Commonwealth DPP.
I have exhausted all funds and am currently self represented in the High Court. These events have demonstrated to me that I cannot get a fair hearing in the Family court (which is a fundamental right of every individual).
I believe that something seriously wrong has taken place within this court and its Melbourne Registry. I have constantly put these concerns before the Court and they have not been addressed and have been ignored.
I respectfully ask as the Minister in charge of this portfolio that an investigation of these matters takes place. I do not have any faith in going thru [sic] the Family Court’s complaints process as the above events show.
I am available to hand up any material that may be asked of me and to provide further particulars of these concerns if you so wish.
Yours Faithfully
…
The Assistant Secretary, Courts, Tribunals and Justice Policy Branch of the Attorney-General’s Department, responded to the husband on 27 November 2014 acknowledging that he had “raised a concern about the conduct of a Registrar during a Costs Conference”. The letter said, “[d]espite having expressed a lack of faith in the Family Court’s complaints process, you may wish to raise your concerns with the Chief Justice of the Family Court at the following address …”
The letter also said that if the husband was not satisfied with the decision of the Court in his matter the appropriate avenue for review is through the appeals process.
On 6 January 2015 the husband wrote the letter which, it appears to me, is at the heart of this application for me to disqualify myself from hearing the appeal. The letter says:
Dear Chief Justice,
I am writing to you at the direction of the Federal Attorney General’s Department. I have also referred my concerns to the Legal Services Commission (I am still waiting for a response), IBAC, [t]he Commonwealth Department of Public Prosecutions and the Federal Police. It is as a result of concerns which have arisen out of proceedings in the Family Court of Australia in Melbourne over the last 6 years, involving the actions of Court officials and officers of the Court (legal practitioners) who have a long tenure with the Family Court. These actions have resulted in a denial to me of a fair hearing and process and a denial of natural justice. It is with much trepidation that I refer these concerns to your office and only after been [sic] given this direction by the Honourable Attorney General. My reluctance is based on the clear perception that the Court here in Melbourne has been reticent in either not ensuring the legal process and proceedings are conducted according to the rules and legal principles of the Court or has been indifferent to such. These matters arose during Court room proceedings before a Judge and Registrar of the Family Court. I must inform you, that I have made an Application to the High Court before which I am self represented as I do not have the financial resources to be legally represented. I can only assume from the Attorney-General’s advice, that I put these concerns before you, irrespective as to whether the High Court deals with my matter or not.
The concerns I wish to bring to your attention are as follows;
Legal practitioners acting for the other side gave false evidence, ostensibly misleading the Court in a contested Application which I made seeking to Injunct them from further acting in the proceedings in the period 2011-2012. These legal practitioners have a long association with the Family court [sic]. The facts of the misleading evidence only came to light some time after judgement [sic] was handed down in the matter and was in the hand of the legal practitioners [sic] own hand. As soon as I was able to obtain all the documented facts and advice I made an Application to the Full Court seeking to put these facts before it. This I did in May 2014. To date I am still awaiting a decision.
In the meantime (late 2013-early 2014) I was directed to attend Costs Assessment Conferences at the Family Court (Melbourne) in relation to the adverse Judgement [sic] to my Application to Injunct. These were under the direction of Registrar Riddiford. During four such Conferences, at which I was represented by Counsel, I was subjected to demonstrably aggressive and hostile behaviour by Registrar Riddiford. This included yelling, denigrating comments both personally and as to the merits of my unsuccessful Application, slamming of doors and questionable decision making. The Registrar also made comment that a previous lawyer representing me in the proceedings was “a smart bloke and how did he let this mess get out of hand”. (The solicitor referred to by the Registrar has a long tenure in this jurisdiction. It was during the long hearing of my Injunction application that I ceased instructing this solicitor due to remarks he made to me concerning the application and his failure to act on instructions).
These events culminated in the most extraordinary and concerning outburst which occurred at the last Conference before Registrar Riddiford when Counsel representing me sought an adjournment of the Costs Assessment proceedings due to the filing of an appeal which I referred to above. I was shocked and mortified to hear the Registrar state to my Counsel, that he, Registrar Riddiford was aware of Confidential legal advice that I was given concerning the making of the Application to Injunct. The exchange was confirmed to my solicitor by both my Counsel and I. I attach email correspondence between myself and my solicitor concerning this.
During the substantive hearing on property matters before the Honourable Justice Benjamin (Jan 2013-May 2013) this same legal practitioner of the other side who I sought to Injunct, in the earlier Application, whilst instructing, yelled out answers to his client who was giving oral evidence in the witness box under questioning. My Counsel immediately objected to his Honour. His Honour made no comment and took no action. I have attached a copy of the Transcript of the incident.
As I stated previously in this letter, it is with great reluctance that I put these concerns before your office and it is only at the direction of the Attorney-General’s Office that I do so now. In saying this, I do not make any accusations nor cast any aspersions on your Honourable Office. These events have demonstrated that I cannot receive a fair hearing on any matter before the Family Court which is a fundamental right of every individual. I believe that something is seriously wrong in place within the Court’s Melbourne Registry. I have constantly put these concerns before the Court and they have not been addressed or ignored. I would like you to also note that I believe that my former partner, the subject of proceedings before the Family Court involving myself, may work in some capacity within the Family Court.
I enclose a copy of the letter of the Office of [the] Attorney General of Australia[.]
Yours Faithfully
…
On 12 February 2015 the Deputy Chief Justice of the Family Court of Australia wrote to the husband as follows:
Dear [Mr Pencious]
I refer to your letter of 6 January 2015 and attachments thereto, addressed to the Chief Justice and received in her Honour’s Chambers on 27 January 2015. You raise a number of issues regarding your proceedings in the Family Court in matter MLC 11069 of 2008, variously before the Full Court and before their Honours Cronin and Benjamin JJ, in the Melbourne Registry of the Family Court.
As Deputy Chief Justice upon the direction of her Honour the Chief Justice, I am responsible for dealing with the issues you have raised and accordingly, your letter has been referred to me for reply. I apologise for the delay in responding to you.
The Family Court is appreciative of your bringing these concerns to notice. These concerns will be investigated and a considered response will be forwarded to you as soon as possible. However you will appreciate that a response must await the finalization of your matter through all of the court and appeal processes and I will write to you again as soon as I am in a position to do so. In this regard, I note your advice that you have ‘..made an Application to the High Court..’. I further note that his Honour Justice Strickland on 13 January 2015, made orders and published Reasons for Judgment, dismissing your application in an appeal (SOA24 of 2012) filed on 21 March 2014.
I must also advise that in formulating any forthcoming response to the issues you have raised, I must emphasise first, that I will be very limited in my ability to address these issues in an administrative capacity; second, that in no way am I suggesting that those issues should not have been raised and, third, you need have no ‘..trepidation..’ regarding your raising of these issues. You may be assured that any investigations will be made in a manner consistent with the protection of your personal privacy and with due regard to the confidential nature of the subject matter.
To place those issues in perspective, I take the opportunity of highlighting a number of often overlooked but vital points concerning Judges of the Family Court and the manner in which they must approach applications which come before them for judicial determination.
…
(Bold emphasis added)
The letter then explains how competing applications must be determined and that often what one party might accept as being fair the other party may not see in the same way. The letter went on to say that should a litigant of the Family Court believe that a judge:
· has made incorrect findings of fact;
· has incorrectly applied the law to those findings of fact;
· was biased, prejudiced, or had a conflict of interest;
· was remiss in the conduct of the proceedings;
·accepted evidence a party believes should not have been accepted or have been deemed relevant to the matters in issue;
·refused to accept evidence a party believed to have been relevant;
·in plain terms has made an incorrect decision;
·or in your terms, ‘..the actions of Court officials… have resulted in a denial to me of a fair hearing and process and a denial of natural justice.’,
then the only avenue of redress is for a disaffected litigant to appeal such a decision through the appeal processes of the Family Court or of the High Court of Australia.
(Emphasis original)
The letter continues:
Neither the Chief Justice nor I can substitute our individual determinations, outside the proper court and appeal processes, for the decision of any Judge complained of in the course of her or of his judicial decisions, whether at first instance or upon appeal. Matters of individual concern regarding the overall conduct of Judges in judicial proceedings, for example your ‘clear perception that the Court (in Melbourne) has been reticent in either not ensuring the legal process and proceedings are conducted according to the rules and legal principles of the Court or has been indifferent to such.’, can be raised only in the context of the judicial determination of applications properly brought and prosecuted before the Court or within the appeals process.
In short, the proper and only way in which a litigant can in any way revisit any judicial decision, is through the appropriate appeals process.
I must also advise that any allegation made regarding the personal conduct of a member of the legal profession, if not raised within the context of the hearing of a properly brought and prosecuted application or appeal, can be dealt with only by the relevant Regulatory Authority of the legal profession in whichever State/Territory the practitioner concerned is admitted to practice.
I have noted your allegation that in the course of a Costs Assessment Conference held before Registrar Riddiford in ‘..late 2013-early 2014..’, you were ‘..subjected to demonstrably aggressive and hostile behaviour..’ on the part of the Registrar. I advise that this allegation has been drawn to the attention of the Principal Registrar, who will report to me in due course upon any investigation of this allegation deemed appropriate and proper.
I have also noted your belief that your former partner – presumably a reference to Ms [Searle], formerly [Pencious] – ‘..may work in some capacity within the Family Court.’. I advise that no record exists of a person of either name being employed in any capacity by either the Family Court of Australia or the Federal Circuit Court. I cannot comment upon the possibility of the person in question being so employed under a different name.
There is nothing further I can usefully add at this stage.
Yours sincerely
…
(Emphasis original)
What I set out above is the gravamen of the husband’s complaint. It is apparent that the substance has been responded to by the Deputy Chief Justice in three material respects.
Firstly, insofar as it is a matter properly for the consideration of the Chief Justice, or by delegation, the Deputy Chief Justice, the husband has been informed the concerns will be investigated and a considered response will be provided after the finalisation of the husband’s current matter and the appeal processes. The Deputy Chief Justice also indicated that he would write to the husband again as soon as he was in a position to do so. In other words, no investigation or inquiry as to the veracity of the allegations one way or the other had been undertaken and would not be undertaken until the conclusion of the husband’s proceedings.
Secondly, that where the complaint is in relation to the legal process then the only remedy for address is through the appeal process.
Thirdly, that insofar as the complaint was about a Registrar, an employee under the Public Service Act 1999 (Cth), the allegation had been drawn to the attention of the Principal Registrar of the Family Court who was to report in due course.
In fact, because of the administrative processes within the Court, whereby I have delegated authority to the Deputy Chief Justice to deal with complaints, the nature of the complaints by the husband in his correspondence were only brought to my attention by virtue of the fact that they were included in the appeal books. In the same way, the complaints were brought to the attention of the other two members of the bench because of their inclusion in the appeal books. Thus, all of the members of the bench were aware of the complaints made by the husband.
Insofar as the husband addresses the question of bias, he does so at paragraph 12 of his affidavit of 9 March 2016, in which he says:
12.My complaint to the office of the Chief Justice concerned the conduct of a court officer of the Family Court of Australia and that this issue has still not been resolved by the Honourable Deputy Chief Justice, to whom the Honourable Chief Justice referred these concerns to [sic], prior to the hearing 29 February 2016 and as yet unresolved. The Honourable Chief Justice was aware of my outstanding complaint and the issues it raised, prior to the hearing 29 February 2016. [T]he correspondence with respect to the complaint also formed part of the Appeal Books and would have been known to the Honourable Justices and to the Honourable Chief Justice hearing the matters on 29 February 2016.
Whilst it is not entirely clear from that passage, it appears that the main complaint by the husband is that relating to his allegations about Registrar Riddiford. He goes on to say:
13.One of the issues heard by the Full Court on 29 February 2016, was in relation to an appeal I made against the dismissal of an Application to Disqualify an officer of the Court (Counsel) in earlier proceedings before the Court, on a Conflict of Interest. My complaint that was received by the Honourable Chief Justice in Chambers in January 2015, concerns the conduct of a Court offcier [sic] (Registrar) and included claims that the Registrar made that he was aware of confidential legal advice that I was given in proceedings before this Court. The issues remain unresolved.
14.The Honourable Chief Justice would be aware of my complaint and its substance concerning the Registrar from January 2015 and that this material was also filed in the Appeal Books in the matters SOA40 & SOA45 of 2015 and the Honourable Chief Justice would have been aware of this material. …
15.In circumstances stated above, I believe that a fair minded reasonable observer may apprehend that her Honour, the Honourable Chief Justice, might not have brought an impartial and unprejudiced mind to the proceedings on 29 February 2016.
Determination
Doing my best therefore to summarise the gravamen of the husband’s complaint, it appears to be that he has complained about the conduct of a Registrar during a costs assessment hearing and other unspecified behaviour of judges which seem to be related solely to the judicial process, that that complaint has not yet been resolved and that the Chief Justice (together with the other members of the bench) was aware of these complaints. The husband contends that a fair minded, reasonable observer may apprehend that the Chief Justice might not have brought an impartial and unprejudiced mind to the proceedings on 29 February 2016.
It is not clear why the other members of the bench would not be equally affected by this information but I am prepared to infer that because I have responsibility for the administration of the Court under s 38A of the Family Law Act 1975 (Cth), it is only in my case that an apprehension of bias might arise.
The principles concerning disqualification on account of bias are well settled. It is generally accepted that a judge will not hear a case where he or she is biased (actual bias) or where “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 (apprehended bias)” (Johnson v Johnson (2000) 201 CLR 488 at 492 (“Johnson”) (citation omitted)).
The law with respect to apprehended bias is well settled and set out in detail in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 where the plurality of the High Court said, at 344–345:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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. That principle gives effect to the requirement that justice should be both done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle …
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has a “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
(Citations omitted)
In Johnson it was also said (at 493):
The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge who training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
(Emphasis added, citation omitted)
Further in JRL; Ex parte CJL (1986) 161 CLR 342 at 352 Mason J held:
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. … [D]isqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must been “firmly established”.
(Citations omitted)
Applying these principles to the submissions of the husband it is readily apparent the test has not been satisfied. There is no basis for the husband to claim that, because he has made a complaint which has not been investigated or determined and that the existence of the complaint is known to me, a fair minded, lay observer might reasonably apprehend that I may not bring an impartial and unprejudiced mind to the resolution of the appeal that I am required with two other judges to decide, both of whom are equally aware of the complaint.
Even if the husband had identified adequately that my knowledge of his complaint was relevant, he has not articulated a logical connection between my knowledge of his complaint and the fear of deviation from the course of deciding the case on its merits.
Four aspects of the authorities to which I have referred are particularly apposite. The first is that the observer is taken to be reasonable (see Johnson) and the requirement to take into account the fact that the person being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant material and the prejudicial (Johnson); secondly, the need to articulate a logical connection between knowledge of a letter of complaint and how a decision might not be impartially given; thirdly, that any reasonable apprehension of bias must be “firmly established” (JRL; Ex parte CJL); and fourthly, that “disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than he will decide the case adversely to a party”: Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [32]; see also Re JRL; Ex parte CJL.
The husband has not “firmly established” any reasonable apprehension of bias arising from knowledge of his letter, nor any logical connection between knowledge of the letter and the partiality of the decision maker. I therefore propose to dismiss the husband’s application in an appeal filed 9 March 2016.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Chief Justice Bryant delivered on 4 August 2016.
Associate:
Date: 4 August 2016
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