Pencious and Searle (No 3)

[2015] FamCA 1217

FAMILY COURT OF AUSTRALIA

PENCIOUS & SEARLE (NO. 3) [2015] FamCA 1217

FAMILY LAW – COURTS AND JUDGES – Disqualification for bias – application by the husband that the trial judge is biased, or that there is an appearance of bias due to the trial judge acceding to an application by the wife for an adjournment of her application and refusing an application for adjournment of the husband’s application – where the husband has failed to identify anything said or done by the trial judge that might indicate that she has decided the proceedings on anything other than its factual or legal merits – interim orders made refusing the husband’s application.

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the husband to strike out the wife’s written submissions on the basis that it was filed in accordance with court orders but was served one day late – no prejudice to the husband in accepting the submissions – where prejudice would be caused to the Court if the submissions were not accepted – husband’s application refused.

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the husband to strike out the wife’s affidavit on the grounds of relevance – where the wife’s affidavit makes no reference to the husband – wife’s affidavit struck out.

Family Law Act 1975 (Cth)

Ebner v the Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507

APPLICANT: Mr Pencious

RESPONDENT: Ms Searle

FILE NUMBER: MLC 11069 of 2008

DATE DELIVERED: 8 October 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 8 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wood

SOLICITOR FOR THE APPLICANT: Tasiopoulos Lambros & Co

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. The husband’s oral application seeking that the Honourable Justice Macmillan be disqualified be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pencious & Searle 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 MELBOURNE

FILE NUMBER: MLC 11069 of 2008

Mr Pencious

Applicant

And

Ms Searle

Respondent

REASONS FOR JUDGMENT

1. The matter listed for hearing before me is the wife’s application in a case filed 24 April 2015 seeking what is, in effect, a vexatious proceedings order restraining the husband from filing any application or document in either this Court or the Federal Circuit Court without having first obtained an order permitting him to do so. 

2. The hearing of the matter commenced on 5 May 2015, was adjourned part heard for further hearing on 22 May 2015 and was thereafter adjourned part heard for hearing on 20 August 2015.  At the hearing on 5 May 2015, the wife applied to have the subpoena issued by the husband requiring her to produce the letter dated 15 October 2010 sent by her then solicitors, Adrian Abrahams Family Lawyers, to Mr Wood of counsel, and the notice to produce filed by the husband requiring her to produce the same document, struck out. The husband, for his part, made an oral application seeking to restrain Mr Wood of counsel from appearing on behalf of the wife. 

   On 22 May 2015, I made orders striking out the husband’s subpoena to the wife and his notice to produce for production of the letter sent by Adrian Abrahams Family Lawyers to Mr Wood of counsel.  On 22 May 2015, I also dismissed the husband’s oral application for an injunction restraining Mr Wood from acting on behalf of the wife and proceeded to commence the hearing of the wife’s application for a vexatious proceedings order.   

3. Prior to the further hearing of the matter on 20 August 2015, the husband filed notices of appeal in relation to both my orders striking out the subpoena and the notice to produce and the dismissal of his oral application seeking to restrain Mr Wood from appearing on behalf of the wife.  At the commencement of the part heard hearing before me on 20 August 2015, the husband sought to have the matter adjourned pending the outcome of those appeals and his applications for leave to appeal to the High Court against orders made by Strickland J.  I dismissed the husband’s application for an adjournment of the matter.  It proceeded on 20 August 2015 and was further adjourned part heard before me this day.

4. At the commencement of the part-heard hearing before me this day, the husband made an oral application for me to disqualify myself from hearing the matter.  The husband submitted in support of that application that, although I had refused his application for an adjournment on the last occasion, that I had told Mr Wood how to address deficiencies in his client’s application and, thereafter, acceded to Mr Wood’s application for an adjournment to enable him to address those deficiencies.  This is notwithstanding that I had told him on 22 May 2015 that he should be ready to meet the wife’s application on 20 August 2015.  It was his case that, not only should I have not helped Mr Wood to address the deficiencies in his case, but that to do so was prejudicial and undermined the integrity of the proceedings.  It was his case that if there were deficiencies in the wife’s application, her application should fail. 

5. It is generally accepted that a judge should 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, 492 (“Johnson’s case”). 

6. A party asserting actual bias on the part of a decision-maker carries a heavy onus.  The allegation must be distinctly made and clearly proved.  In Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 , Gleeson CJ and Gummow J, with whom Hayne J agreed, said as follows:

   [71] … Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias.  The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.  The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias. 

   [72] … The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.  Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion… 

   …

   [78] … In considering whether conduct of a decision-maker indicates prejudgment, or in some other respect constitutes a departure from the requirements of natural justice, the nature of the decision-making process, and the character of the person upon whom Parliament has confirmed the decision-making capacity, may be of critical importance…

7. The law with respect to apprehended bias is equally well-settled.  In Ebner v the Official Trustee in Bankruptcy (2000) 205 CLR 337 the plurality of the High Court said, at pages 344-345, as follows:

   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 a 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 may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial.  So important is the principle that even if the appearance of departure from it is prohibited less the integrity of the judicial system be undermined.  There are, however, some other aspects of the apprehension of bias principle which should be recognised.  Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter.  The question is one of possibility (real and not remote), not probability.  Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome.  No attempt need be made to inquire into the actual thought processes of the judge or juror.

   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 it is said might lead a judge (or juror) to decide a case other than on its legal or 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 an “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. 

   (Original emphasis) (Citations omitted)

8. In Johnson’s case, an earlier decision of the High Court, the plurality said at page 493 of that decision:

   Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.  The rules and conventions governing such practice are not frozen in time.  They developed to take into account of the exigencies of modern litigation.  At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.  In Vakauta & Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”.  Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment.  Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments presented.  On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

   (Citations omitted)

9. It is not totally clear, based upon the husband’s submissions in this case, whether he is asserting actual bias or apprehended bias.  Insofar as he is submitting that there has been actual bias, that allegation is neither distinctly made or, in my view, clearly proved in circumstances where he relies essentially upon the rejection of an application for adjournment and the Court acceding to the wife’s application for an adjournment in circumstances where those applications were based on totally different issues.  I am also not satisfied that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial or unprejudiced mind to the resolution of the question I am required to decide.  Is it important, in my view, to bear in mind that, in this case, that it is whether the Court should make a vexatious proceedings order. 

10. The husband complains about my decision to refuse his application for an adjournment and allow the wife’s application for an adjournment.  The basis of the husband’s application for adjournment on 20 August 2015 was that he would be prejudiced by Mr Wood’s appearance on behalf of the wife because Mr Wood has been privy to confidential information about the husband contained in the letter sent by Adrian Abrahams Family Lawyers to Mr Wood. 

11. I found in relation to that application that the husband’s submissions as to the breach of confidentiality made little or no sense in circumstances where it was his case that that very letter should be in evidence and concluded that it followed that any counsel appearing on behalf of the wife would be tainted by the so called confidential information.  Nothing has changed since I made that decision and, in fact, it was submitted by Mr Wood that the husband is now seeking that the letter be produced for the purposes of his various appeals. 

12. The wife’s application for an adjournment, on the other hand, arose as a result of the dialogue between the bench and Mr Wood as to the way in which he framed his submissions.  It is, in my view, significant that the substance of my concerns was primarily with respect to the submissions being made based upon the evidence not in relation to deficiencies in that evidence.  I note that the wife has not filed or sought to file any further affidavits.

13. My concern, which I made clear to Mr Wood, was that in circumstances where the Court would be required to make findings as to particular proceedings being vexatious, submissions as to the husband’s alleged vexatious conduct generally would necessarily require the Court to trawl through the evidence to determine what, if any, of the proceedings to date might be vexatious, something that in my view it should not be required to do.  This is reflected in the orders I made for the filing of further submissions and giving the husband the opportunity to reply to those submissions. 

14. The complaint was, in this case, directed to what the Court required by way of assistance from counsel in the management and conduct of the case.  As referred to in Johnson’s case, modern judges are required to more actively manage the cases before them to achieve a just and timely outcome. Significantly, the husband does not point to either any dialogue between the Bench and the bar table or, for that matter, any decision that would suggest to a reasonable-minded lay observer that I would not bring an impartial or unprejudiced mind to the question of whether or not a vexatious proceedings order should be made.  The Court must be able to manage the proceedings before it.  Arguably in this case there was also no prejudice to the husband as a result of my doing so as he was given an opportunity to understand in advance the case being put by the wife and have the opportunity to answer that  case. 

15. In my view, the prejudice to the wife if the husband’s submission that the Court should have dismissed the wife’s case rather than adjourn it were accepted, highlights why it could not be said that the decision to reject the husband’s application for an adjournment and grant the wife’s application for an adjournment demonstrates that I might not bring an impartial and unprejudiced mind to the matter I must determine.  To the contrary, to adopt the approach the husband submits should be adopted would have resulted in the dismissal of the wife’s application not on the merits but on the basis of its presentation. 

16. It is, as set out in Ebner (supra), a two-step test.  In my view, the husband has neither identified anything that I have said or done in the conduct of these proceedings, which might lead the reasonable lay observer to conclude that I would decide the case other than on its legal and factual merits.  Having regard to the second step of that test, in my view, even if the husband had identified either something I had said or something I had done or orders I had made in the conduct of these proceedings, he has not articulated a logical connection between the matter and the fear of deviation from the course of deciding the case on its merits.  In all of the circumstances, I propose to dismiss the husband’s application. 

17. The husband has this day also made two other preliminary applications.  One is that I should strike out the wife’s further submissions, which were filed on 3 September 2015, filed in accordance with my order of 20 August 2015, but, as submitted by the husband, not served upon him until the following day.  The husband, apart from making the point that I have pointed out to him his obligation to comply with orders, points to no prejudice that he has suffered as a result of not late filing, but the late service by one day of the submissions.  The submissions are there not just as between the parties, but for the benefit of the Court.

18. It will be of great assistance to the Court to have the submissions, and I have to say, probably not surprisingly, I have already read those submissions in anticipation of the case.  I can see no prejudice to the husband in allowing those submissions to be relied upon by the wife, and, in circumstances where the only prejudice may be to the Court in hearing the matter, I do not propose to strike out those submissions.  The Court must be able to manage proceedings to achieve a just and timely result.  In achieving that just and timely result, I must weigh up the prejudice.  There would arguably be some prejudice to the wife not being able to rely upon. 

19. Whereas I have found there is no prejudice to the husband given that he has had them since 4 September 2015.  There would be prejudice to the Court in the conduct of the case, and so I do not propose to strike them out. 

20. The other issue the husband raises is in relation to an affidavit sworn by the wife on 25 June 2015 and filed on 26 June 2015.  That is an affidavit of some three paragraphs which primarily relates to proceedings before the Psychologists Registration Board of Victoria and annexes a decision of that body.  The decision which is annexed identifies the notifier as a Ms OU. There is no reference, as such, to the husband.  In all of the circumstances, I am not satisfied that it is, on the basis of the evidence before me, of relevance to the proceedings before me, and I propose to strike out that affidavit.

I certify that he preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 8 October 2015.

Associate: 

Date: 23 February 2016