Prendergast & Parsons (No. 3)

[2007] FamCA 445

FAMILY COURT OF AUSTRALIA

PRENDERGAST & PARSONS (NO. 3)  [2007] FamCA 445

COURTS AND JUDGES – Application for disqualification of trial Judge on grounds of perceived bias – Dismissed

s 75(2) of the Family Law Act 1975 (as amended)

Waters v Jurek (1995) FLC 92‑635
Re Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262
Livesy v New South Wales Bar Association (1993) 151 CLR 288 at 293
Johnson v Johnson (2000) 201 CLR 485)

Re JRL; Ex parte CJL (1986) 161 CLR 342 at 351
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 348

APPLICANT: Mr Prendergast

RESPONDENT: Ms Parsons

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 764 of 2004

DATE DELIVERED: 26 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT (NO. 2) OF: Guest J

HEARING DATE: 26 March 2007

REPRESENTATION:

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Eidelson

SOLICITOR FOR THE RESPONDENT: Berry Family Law

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Brewer

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Robert Halliday & Assoc.

Orders

1. That the husband's oral application for disqualification made this day is dismissed.

2. It is directed that a copy of the extempore judgment delivered this day be transcribed, placed on the court file and made available to the parties. 

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 764  of 2004

Mr Prendergast

Applicant

And

Ms Parsons

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. I have before me an oral application brought by the husband that I be disqualified from hearing this matter on the basis that I have, it is asserted by him, already predetermined the issues before me.  That appears to have its genesis from a judgment I delivered on 3 January 2007 and is otherwise alleged to be re-enforced by remarks made by me in the course of that hearing. 

2. The application is opposed by Mr Eidelson of counsel, who appears on behalf of the wife and by Mr Brewer, who appears for the Independent Children's Lawyer. 

3. I patiently permitted the husband to outline in detail all the material upon which he relied in support of his application.  This morning he tendered Exhibit “H1” which is a copy of a letter dated 21 February 2007 from my Associate to all practitioners and litigants in person involved in the rolling list of the Standard Track List of defended cases to be conducted by me and commencing 13 March 2007.

4. The exhibit also comprised a letter written by the Attorney‑General, the Honourable Philip Ruddock MP to the husband dated 27 February 2006 and a letter written under the husband’s hand to the Registry Manager, marked “urgent” and dated 9 March 2007 and which, it would be fair to say, in paragraphs 5 and onwards details the basis for his application before me today.  Exhibit “H1” also comprises a response from the Registry Manager to the husband dated 15 March 2007, a copy of a letter written by him to my Associate dated 23 March 2007 and a copy of a letter written by the husband to the Chief Justice of the Family Court of Australia also dated 23 March 2007.

5. I have also received additional documents to be relied upon by the husband, being Exhibit “H2”, a letter dated 22 March 2007 from the Registry Manager to the husband responding to his letter of 9 March 2007 (which forms part of Exhibit “H1”).  I have also received, at the husband's request, a document marked Exhibit “H3”, which is a copy letter from him to Victoria Legal Aid dated 11 January 2007 and which, he has assured me, is in identical terms to a letter that he wrote to the Attorney‑General, and to which the Attorney‑General responded as detailed in Exhibit “H1”.  That comprises all the material upon which the husband relies.

6. The first letter of 11 January 2007, (see Exhibit “H3”) is a lengthy one in which the husband chronicles his complaints against the court generally for unfair treatment.  He asserts "continuous abuse" by the wife's solicitors to him, as the applicant.  He complains generally of “unfair treatment” by the court and “predetermination comments”, with orders made against him based on “a false argument” brought by the wife's solicitors.  He complains of various other issues, including what he describes as neglect by "family report writers", and that he has been “prevented” from obtaining legal representation. 

7. The husband claims to having been unfairly disadvantaged.  He complains about the conduct of the wife's previous solicitor, Mr Cornelius, which he has also included as an allegation in his trial affidavit.  He complains of a “conflict of interest plus many other unethical issues” and his inability to have legal representation as the court has “frozen the rental account”, suggesting that fact as the basis he has no legal representation, although I recall it is asserted in the wife's affidavit that he has had appearing for him in the past a number of different solicitors. 

8. The letter of 11 January 2007 goes on to recount the past under headings such as “Background” and “Current”, and more pertinent to the application before me is the following which, for the purpose of narrative understanding of this judgment, is in the following terms: 

   “Now, the Judge at the last hearing, 3rd Jan 2007 (proven by the transcript) makes predetermination comments regarding my case, continually referring to me being vexcious(sic) litigant. 

   I have the proof that all this is based on error, and I neither the child do not deserve this treatment from the court and the other party. 

   Does all this answer, why the child is getting continuously affected on [the wife]? Is there any relation?  it is obvious that there is not.”

9. The letter also goes on to address other issues.  I have earlier in this judgment referred to the fact that the gravamen of the husband's complaint is that set out in paragraph 5 of his letter 9 March 2007.  Earlier in the letter, however, he writes to the registry manager complaining of Young J making "unfair judgment" about an application that he brought where his Honour ordered that all extant applications be dismissed and went on to mention the issue of whether or not the husband’s conduct fell within the meaning of s 118(3) of the Family Law Act 1975, given the whole of the factual matrix before him. He did not make a determination on the issue.

10. Ultimately an application was brought by the wife pursuant to s 118(3) of the Act and heard by Morgan J who delivered a judgment on 25 July 2005. I have read that judgment. Her Honour recounted the basic background and was satisfied by reason of the history, that unless restrained the husband would continue to persist in filing unmeritorious and vexatious applications. It was in those circumstances that her Honour made the order she did.

11. Returning now to the letter of 9 March 2007 (see Exhibit “H1”), the husband again set out a long history of matters past, referring to the fact that he was declared a vexatious litigant by order of the court, and on page 4 of the letter, in paragraph 1(xv) he has this to say:

    “Honourable, Justice Guest, in 3 Jan 2007, makes numerous comments about myself being vexsious (sic) litigant and features that in his reasons for Judgment.  This is more detailed in the other concerning in point (5) below.” 

12. The husband then goes to relate various issues, such as delay in proceedings.  He criticised the family report writer who prepared the latest report and requested “a Fair Trial”.  That is where his complaints against me appear to be articulated.  What the husband complained about is that on 3 January 2007 I made numerous comments against him being a vexatious litigant.  He complained that I "made predetermining comments regarding the final hearing”, referring to the welfare application, which negatively affected his case.

13. The husband complained that I also made “predetermining comments” regarding the final hearing concerning his financial matter, which he claimed "negatively" affected his application.  He then complained that I unfairly froze the rental moneys of two investment properties.  That, I hasten to add, was an order I made on the material before me.  There was no argument offered by his counsel at the time who presented himself, I well recall, most professionally indeed.  There was no complaint at that time of any impropriety on my part or that I had been unfair in my dealing with his application before the court.  It is to be remembered that it was the wife's application to dispose of three properties, and in the result it failed, for the reasons stated in my extempore judgment delivered on 3 January 2007. 

14. To that extent, it could be said the husband was successful in his application. It was, for the reasons stated in my judgment, otherwise adjourned until a judgment had been delivered by the Master of the Supreme Court concerning the commencement of proceedings before that court involving the same two properties I was asked to deal with.  I also note that there was no appeal delivered against my judgment.

15. In his complaint, the husband asserts that I accepted the wife's allegations that he did not pay child support and that she was "rewarded for her false allegation".  He goes on to claim that despite his objections I accepted the wife's allegations.  That is not so, and any fair reading of my judgment would demonstrate that to be the position.  The argument then, as it is before me now, is the husband's contribution to the child's support.  My recollection is that he has been assessed at the minimal payment of $20 per calendar month. 

16. The husband then refers to various other issues, that I need not recount into this judgment, dealing with the manner in which I heard and determined the application before me on 3 January 2007.  He complained for example that "Justice Guest makes remarks that his reasons for judgment be transcribed and put on file, so other judges read it."  That is quite a misunderstanding by him of what is known in this court as open justice.  It is standard phraseology that my ex tempore judgment be transcribed, placed on the court file and made available to the parties.  The husband seems for some strange reason to view that I did so in order that he would be disadvantaged by other judges reading my judgment.

17. The husband went on to complain that I made comments to his solicitor "implicating that the notion of ‘myself getting nothing’ is the track that they are heading to.  Which also contributed to influencing my solicitor to withdraw from representing me".  That is a misreading of my judgment.  My judgment dealing with that issue is set out in paragraph 14.  What I had to say was this:

    “What concerns me is that ‘the reality’ of the dispute between the husband and the wife has been lost.  It would be far better in the circumstances that the husband gather his resources to work out a strategy to minimise the outflow of funds and to preserve some form of capital equity in the three properties to which he may have some, (I stress ‘some’) entitlement.  However, that is going to be a matter for another judge at another time at the final hearing of this matter.”

18. I had earlier in the judgment referred to what are known as prospective adjustments pursuant to s 75(2) of the Act and brought to the attention of all parties in court what Fogarty J had to say in Waters v Jurek (1995) FLC 92‑635, and the importance they played which were fast becoming, to use his Honour's words, "the centre of gravity" in most property disputes.  That was designed to assist the husband.  However, he appears to have drawn some imputation that it was contrary to his interests and which I reject. 

19. The husband goes on to complain that in my reasons for judgment, my “predetermination comments stresses”, that he will not get anything.  That too is an incorrect reading of my reasons, and misconstrues the whole narrative debate between myself, his counsel and counsel for the wife.  The husband then goes to make further assertions, which are evident in his letter of complaint.

20. Late this morning, when the matter resumed, the husband sought an adjournment.  I refused that.  He said he did so because he was seeking to place before me a reply from the Registry Manager to his letter of 9 March 2007.  I have seen on the court file a copy of the reply which is dated 22 March 2007.  I have provided a copy to all parties.  It seems to me that a fair assumption may be drawn that the letter may have been posted on the evening of Thursday 22 March 2007.  It appears not to have been received at the former matrimonial home at H on the Friday.  It may well be there now.  I have given the husband a copy which he has read.  He placed no further submissions before me in response to it.

21. I might say that this document is a very commonsense and predictable reply to the husband’s complaints.  For example, the Registry Manager acknowledged his letter and went on to say:

    “Should you be of the view that past issues have disadvantaged you in relation to your current application(s), then you may attempt to bring such issues on notice at the hearing.  The presiding Judge alone will decide whether such issues are relevant and admissible.  Decisions of Judges can only be questioned through the appeals process. 

    I advise in response to your paragraph 5(n) that Judges listed to hear matters in the Family Court are not appointed to particular cases on the basis of their gender. 

    It is not possible administratively for you to indicate a preference or otherwise for a particular Judge to hear your matter.  Provided there are no orders in existence to the contrary, any Judge of the Family Court can be appointed to hear any matter.  It is open to you however to apply to the Judge hearing your matter to disqualify her or himself.  You must make such application in Court before the Judge concerned and provide relevant and admissible evidence to support your reasons for seeking that the Judge concerned no longer hear your matter, again any decision made by the Judge is reviewable through the appeals process.” 

22. The author then goes on to point out that Judges of this court only make decisions based on findings of fact after considering relevant and admissible evidence presented in court. 

23. As to his letter to the Chief Justice of the Family Court of Australia, it is known at the moment that her Honour is on well‑deserved leave.  I do not see that I can be advantaged by any further matters that could be responded to by the learned Chief Justice.  All that could be said has been said, it appears to me, both by the husband in his complaint and by the registry manager in responding to his letter of complaint.  The husband did not seek to advance any further argument or material in support of his argument.

24. The law is clear as to the test that I am to apply when considering an application of this nature.  That is, that I should not sit to hear a case or continue with the hearing of a case if, in all the circumstances, a party or the public might entertain a reasonable apprehension I may not bring an impartial and unprejudiced mind to the resolution of the issues to be decided.  (See, for example, Re Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262 per Barwick CJ and Gibbs, Stephen, Mason and Jacobs JJA; Livesy v New South Wales Bar Association (1993) 151 CLR 288 at 293; and Johnson v Johnson (2000) 201 CLR 485).

25. For the benefit of the parties, in particular to assist the husband in better understanding my determination of his application, I refer to what Mason J, as he then was, said in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 351, namely:

    “It needs to be said loudly and clearly that the ground for disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice; rather, that he will decide the case adversely to one party.  There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that is likely to decide issues in a particular case adversely to one of the parties.  This does not mean either he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.  In cases of this kind disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment, and this must be firmly established.”

    [His Honour then referred to a number of authorities and went on to say]:

    “Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking a disqualification of a judge they will have their case tried by someone thought to be more likely to decide the case in their favour.”  [My emphasis]

26. In Johnson v Johnson (supra) Kirby J had occasion to refer to re JRL; ex parte CJL (supra) and had this to say at page 504:

    “Such considerations lie behind the salutary warning given in Re JRL; ex parte CJL that judicial officers in Australia were obliged to discharge their professional duties unless disqualified by law.  They were told not to accede too readily to suggestions of an appearance of bias lest parties be encouraged to seek such disqualification without justification.  Applications of that kind might sometimes be made in the hope of securing an adjudicator more sympathetic to a party's cause.  Or they might be made because of the strategic advantage that may thereby be secured, especially the interruption of lengthy proceedings and the delays consequent upon obtaining a fresh start in a busy court or tribunal.”

27. I have given my earnest consideration to the husband's application and it is important for all parties to understand that my judgment is directed to the legal and factual issues arising from an application of this nature.  I have yet to hear the contested applications and it is only then that I shall make my final determination. 

28. The competing applications have now been before the court for a number of years and in the fullness of time found their way into the Standard Track List of Defended cases.  It falls to me to conduct the final hearing, to which I shall attend in an independent and impartial way.  In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 348 Gleeson CJ, McHugh, Gummow and Hayne JJ, when considering the principles to be applied, also had this to say:

    “Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong.  They do not select the cases they will hear and they are not at liberty to decline to hear cases without good cause.  Judges do not chose their cases; and litigants do not chose their judges.  If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case. 

    This is not to say that is it improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified.  In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification.  However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench.  That would be intolerable. 

    It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit.  Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted.  These problems usually arise in a context in which a judge has no particular personal desire to hear a case.  If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise. 

    The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.”

1. In my view, the basis for disqualification raised by the husband is entirely without merit and I do not propose to accede to his application.  He was ably represented at the hearing before me on 3 January 2007 and not one scintilla of a suggestion was raised by his then counsel on that day suggesting that I had in any way treated the husband unfairly.  I decided the contest on the material before me and there was the usual dialogue between myself and all counsel identifying the issues.  Further, the husband raised no such objection when before me on 13 February 2007, it being then known that I was to be the trial judge. 

2. It seems to me that the husband has in some way perceived me to be a judicial officer not compliant to his interests in court, which is plainly wrong.  He has, in pursuit of his misplaced ideation, written to the Attorney‑General for the Commonwealth of Australia, the Prime Minister, the Chief Justice of the Family Court of Australia and the Registry Manager of the Melbourne Registry of the Family Court of Australia.  His complaints, when distilled, are mere broad, sweeping assertions without the identification of particulars. 

3. I heard the contested applications on 3 January 2007 and delivered judgment, which appears on the court file.  That judgment by no measure, or at all, supports the husband's extravagant assertions.  I have accorded him every reasonable opportunity to identify the material relied upon by him.  This he has, somewhat painstakingly, now done.  I have read that material.  It does not, in my view, identify issues that would support his application. 

4. Omitted from his material marked Exhibit “H1” was a letter from the Registry Manager to him dated 22 March 2007.  With an abundance of caution, as I earlier explained, I provided a copy to him and to all counsel.  The letter, as written and in a commonsense way, relates the court's position and his own.  I regard the husband's submission that he seeks further time to await a reply from the Chief Justice of the Family Court of Australia as mere time‑wasting.  I have all necessary material before me to determine the husband's application, which is, in my view, quite without merit.  Both Mr Eidelson and Mr Brewer have submitted that I dismiss the application.  This I will do. 

5. I will hear at an appropriate time any further submissions on costs.

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  16 May 2007.

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