Pencious and Searle (Disqualification) - [2016] FamCAFC 150

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
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111

APPELLANT:

Mr Pencious

RESPONDENT:

Ms Searle

FILE NUMBER:

MLC

11069

2008

FIRST APPEAL NUMBER:

SOA

2015

SECOND APPEAL NUMBER:

SOA

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pencious and Searle (Disqualification)

Details

AGLC: Pencious and Searle (Disqualification) [2016] FamCAFC 150
Case: [2016] FamCAFC 150
Decision Date: 4 August 2016

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Pencious and Searle (Disqualification) was heard, involving an application by the appellant to disqualify the Honourable Chief Justice Bryant from hearing Appeals SOA 40 and SOA 45 of 2015. The appellant's primary concern was the perceived bias of the Chief Justice due to his prior involvement in the proceedings, and thus sought his disqualification from the appeal. The legal issues before the court centred on whether the Chief Justice's prior involvement warranted his disqualification due to apprehension of bias, and if the application was filed within a reasonable time.

The court considered the appellant's application under the framework established in the cases of Ebner v Official Trustee in Bankruptcy and the Australian Broadcasting Tribunal v Bond. The court determined that the appellant had not demonstrated any valid grounds for the Chief Justice's disqualification. The prior involvement of the Chief Justice was not deemed to be such that it would create a reasonable apprehension of bias. Furthermore, the court found that the application was not made within a reasonable time, as required by the legal principles guiding such applications. Consequently, the court dismissed the appellant's application.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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