Polo and Polo and Ors (No. 2) - [2007] FamCA 385

FAMILY COURT OF AUSTRALIA

POLO & POLO AND ORS (NO. 2)

[2007] FamCA 385

FAMILY LAW – PRACTICE AND PROCEDURE – Knowledge gained by Judge outside of courtroom of facts in issue – Withdrawal of Judge from proceedings.

Federal Proceedings (Costs) Act 1981

Livesey v The New South Wales Bar Association (1983) 151 CLR 88
GIO v Bailey (1992) 27 NSWLR 304
Minagall v Ayres (1966) SASR 151
Brown v Pederson (1992) FLC 992-271

APPLICANT WIFE: MRS POLO

RESPONDENT HUSBAND:                  MR POLO
SECOND RESPONDENT:  MS POLO
THIRD RESPONDENT:  MR S POLO
FOURTH RESPONDENT:  P PTY LTD
FIFTH RESPONDENT:  G PTY LTD
FILE NUMBER:  CAF 872 of 2003

DATE DELIVERED:  23 April 2007
PLACE DELIVERED:  Canberra
JUDGMENT OF:  Finn J
HEARING DATE:  23 April 2007

REPRESENTATION
COUNSEL FOR THE APPLICANT WIFE: Mr Mater
SOLICTOR FOR THE APPLICANT WIFE: Anne Marie Proctor & Associates
COUNSEL FOR THE RESPONDENT

HUSBAND AND FOURTH RESPONDENT: Mr Bartfeld SC and Mr Kearney

SOLICITOR FOR THE RESPONDENT
HUSBAND AND FOURTH RESPONDENT: Farrar Gesini and Dunn

COUNSEL FOR THE SECOND, THIRD

AND FIFTH RESPONDENTS: Mr North SC

SOLICTOR FOR THE SECOND, THIRD

AND FIFTH RESPONDENTS: Crowley Clifford Simpson

Orders

That the final hearing of the proceedings before the Honourable Justice Finn be discontinued.
That there be a new hearing of the proceedings on a date to be fixed.
It is certified that this was a matter proper for the attendance of Counsel, including Senior Counsel.
That the Court grants to the applicant wife a costs certificate pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payment under that Act to her in respect of such part as the Attorney-General considers appropriate of any costs incurred by her in relation to the discontinued proceedings.
That the Court grants to the husband and to the fourth respondent a costs certificate pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payment under that Act to them in respect of such part as the Attorney-General considers appropriate of any costs incurred by them in relation to the discontinued proceedings.
That the Court grants to the second, third and fifth respondents a costs certificate pursuant to s 10(3) of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payment under that Act to them in respect of such part as the Attorney-General considers appropriate of any costs incurred by them in relation to the discontinued proceedings.

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 872 of 2003

MRS POLO

Applicant

And

MR POLO AND ORS

Respondent

REASONS FOR JUDGMENT

Ex Tempore

On 2 April this year (2007) I commenced a final hearing of proceedings between the husband, Mr Polo, and the wife, Mrs Polo, for property settlement. The parties' two adult children, Ms Polo and Mr S Polo, and a related company, G Proprietary Limited, had been joined in the proceedings by the wife.
I had since at least late 2005 been engaged in what could be called case management of the case.
The final hearing which commenced on 2 April 2007 continued on 3, 4 and 5 April, although much of that time was taken with the parties being out of Court preparing material about their assets.
Following the Easter weekend the hearing resumed on Tuesday 10 April and continued until Friday 13 April by which time the wife's cross-examination had been completed. The hearing resumed on Monday 16 April continuing until Wednesday 18 April at which point the cross-examination of the husband had been completed. There was then to be a two day adjournment to suit the convenience of counsel.
On the evening of Wednesday, 18 April, in a conversation at my home with my daughter, who is mid-way through a university architecture degree and is currently undertaking a work experience year with what is effectively a one principal architect's firm, and I add, is currently living with me, I became aware that the husband and the son are current clients of that firm.
I determined at that point, that is, on that evening, that I should draw this circumstance to the attention of the parties and their lawyers, and that this was a particularly necessary course in circumstances where a significant issue in the case, as I understand it anyway, is what actual involvement the husband still has in the building and development operations now carried on by a company wholly owned by his relatively young son.
On the morning of Thursday, 19 April, and before I could organise a further listing of the matter, my daughter contacted me to say that that morning she had been called to a meeting with the husband and would in the normal course of events be engaged on work for a development project for him.
As I indicated to the parties and their representatives at the mention which I held later on Thursday 19 April (for the purpose of informing the parties of the situation that had arisen), the principal of the architect's firm was prepared to try to quarantine my daughter from contact with the husband. However as I also explained in that mention on Thursday 19th, I recognised that it would be extremely difficult, given the small office and the limited number of staff available to the architect in question, for that arrangement to be satisfactorily employed.
I did however, at that mention on 19 April, inform the parties that I was not embarrassed to continue to sit on the case, but that it was a matter for the parties' perceptions.
When the matter resumed this morning (23 April 2007), senior counsel for the husband, supported by senior counsel for the adult children moved that I should disqualify myself. That application was opposed, it could be said, strenuously by counsel for the wife.
I will not here repeat the submissions made in support of, or in opposition to the application for my disqualification; they will be available on the transcript. But essentially the issue as presented in counsels’ submissions comes down to an issue of public perception versus costs and inconvenience, and no doubt stress, particularly to the wife.
In relation to the various authorities to which I was referred this morning, I consider that the most relevant to the present situation is Livesey v The New South Wales Bar Association (1983) 151 CLR 288. In that case the High Court said (at 293-4):
[The] principle is 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 he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.
…
If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting.
Although not referred to by counsel this morning I also consider that some assistance in the difficult decision I have to make, is to be gained from what was said by the New South Wales Court of Appeal in GIO v Bailey (1992) 27 NSWLR 304. Broadly that case and the authorities therein referred to, were concerned with judges' observations of witnesses in the courtroom. However, an important passage from the judgment of Clarke JA in that case is as follows (at 323) (emphasis added):
There is no doubt that the general rule is that a judicial decision should be based upon evidence given during the trial and that a judge is not entitled to have recourse to personal knowledge relating to facts in issue gained otherwise than from the evidence adduced before him or her. For instance a judge should not, without the knowledge of the parties, have a view of the scene of an accident, take some measurements at the site and then rely on what he had observed in forming his judgment: Coldwell v Municipal Tramways Trust [1928] SASR 234.
A little later his Honour cited the following passage from Minagall v Ayres [1966 SASR 151]:
It seems to us that it is a matter of what we should regard as “fair play and common sense”. The condition upon which a judge is at liberty to take notice of what he has seen for himself is that the parties should know or be informed of what he has noticed, or have an opportunity of answering or dealing with it.
While not exactly on point, these principles have, I think, some present relevance.
In the present case it is true that I have disclosed to the best of my recollection to the parties, what I have learned through conversations with my daughter, that being essentially that the husband, and on some occasions accompanied by the son, is consulting and employing a firm of architects on, it seems, one or more projects.
I said earlier that I understood there to be an issue in this case - the issue being the extent to which the husband is still actively involved in the building and development business.
Lawyers understand the concept of a judge putting matters out of his or her mind for the purposes of determining a case. It happens all the time with objections taken to passages in affidavits (of which we had many in this case). However, in relation to the striking out of passages in affidavits, all parties involved in the case know what was in fact in the passages which have been struck out.
In the present case the parties cannot ever know the exact context, or content, of the information available to me from a source outside this courtroom or other than the papers filed in relation to the proceedings, and this must be so notwithstanding any undertaking that I could give not to discuss the matter further with my daughter. I am extremely conscious of, and concerned about, the costs involved and inconvenience to these parties, but I consider that the interests of the perception of open justice require me to disqualify myself. I do so with the greatest reluctance.
I would be willing to assist the parties in any attempts of conciliation or indeed even endeavour to isolate issues for a further and perhaps more confined trial.
There is little consolation for me or for the parties in what has come about in this case. I can only say that if it had to come, I suppose better now than after we had engaged in further days, and worse still if I was reserved, or had written a judgment. So, accordingly I will no longer hear this case.

Addendum to ex tempore judgment of 23 april 2007

In settling my ex-tempore judgment of 23 April 2007, it occurred to me that in light of the first submission made by senior counsel for the husband in support of the application that I should no longer sit on the case, I should record the following matters.
Senior counsel’s first submission related to a subpoena which had been issued on behalf of the wife on 9 August 2006 to the architect for whom my daughter is currently working.
I had no knowledge of that subpoena prior to 23 April this year. In accordance with what was said by the Full Court in Brown v Pederson (1992) FLC 992-271, the only documents on the Court file which I had read or even seen were those which the parties informed me that they relied on. So far as I can recall there has never been any reference by any party before me to the subpoena to the architect issued on 9 August 2006.
I would add that I do not recall having ever heard of this architect until his firm wrote to me in October last year (2006) to draw to my attention a development which was to be undertaken in my neighbourhood. I had some limited contact with the firm at that time.
In November to December 2006 my daughter applied for a work experience position with, and was interviewed by, a number of architects in Canberra. She was offered a position with the architect she is now with prior to Christmas, and commenced work with that firm in mid-February this year. I do no know when she first encountered either the father or the son. I first knew of her contact with them on the evening of 18 April 2007.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Finn.

Associate:

Date: 1 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as POLO & POLO