Reece and Leverhalle

[2010] FamCA 276

FAMILY COURT OF AUSTRALIA

REECE & LEVERHALLE [2010] FamCA 276

FAMILY LAW – COURTS AND JUDGES – Application for the appointment of an interstate judge because local solicitor is a party – Matter adjourned to open court for comprehensive argument

Family Law Act 1975 (Cth)

Ebner v Official Trustee (2000) 205 CLR 337
R v Watson; exparte Armstrong (1976) 136 CLR 248
Strahan & Strahan [2009] FamCAFC 204
Webb v R (1994) 181 CLR 41

APPLICANT: Mr Reece

RESPONDENT: Ms Leverhalle

FILE NUMBER: MLC 6510 of 2008

DATE DELIVERED: 14 April 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: WESTMINSTER LAWYERS

SOLICITOR FOR THE RESPONDENT: GILLIAN COOTE FAMILY LAW

Orders

1. That the application for the appointment of an interstate judge and the determination of any priority be adjourned to open court for hearing at 2.15pm on 22 April 2010 before me.

2. That each party file any written argument upon which they intend to rely by midday on 21 April 2010 and such argument be exchanged at that time.

IT IS NOTED that publication of this judgment under the pseudonym Reece & Leverhalle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6510  of 2008

MR REECE

Applicant

And

MS LEVERHALLE

Respondent

REASONS FOR JUDGMENT

1. On 15 March 2010 both parties consented to orders being made by Senior Registrar FitzGibbon in the following terms:

   That applications of all parties are adjourned to a date to be fixed before the Honourable Justice Cronin to allocate an interstate judge to hear the matter and/or to determine whether to expedite the final hearing.

2. The process by which that was to be determined was on written submissions.

3. The wife filed her written submission which said very little.

4. On 12 April 2010, the husband filed his summary of argument in which he submitted that I should not determine the wife’s application for an expedited trial notwithstanding the order of the senior registrar to which I have referred.

5. The wife’s submission was that she consented to an interstate judge hearing the matter and otherwise sought an expedited hearing of her application to relocate internationally.

6. In his submission, the husband raised a preliminary point.  He said that it was inappropriate for a Melbourne-based judge to be involved in a matter involving a practitioner who practised in the Court on a regular and frequent basis.  He added that the matter involved disclosure of personal information about the husband’s private life. 

7. The submission then went on to make reference to the fact that the husband had briefed a number of judges including myself prior to appointment.

8. Having set that ground, the husband submitted that I should not determine the wife’s application for an expedited trial and that the matter should be referred to an interstate judge to undertake that task as well.

9. No legal basis was submitted for the assertions.  Whilst it has sometimes previously been said that cases involving local legal practitioners either as parties or witnesses should not be heard by local judges, I am not aware of the issue ever having been comprehensively argued.

10. I perceive this is an application for disqualification on the ground of bias but I am not entirely sure of its basis.  Until that issue is determined, the assertions of the husband as I have outlined them above, lack foundation.  In addition, I have not heard the wife’s position in respect of the matters relating to an interstate judge other than the fact that she consents to the orders proposed by the husband. 

11. Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked. They are assigned to cases in accordance with the management practice of this Court.  They do not decide which cases they will hear and are not at liberty to decline to hear cases without just cause.  Litigants do not choose their judges.  (See Ebner v Official Trustee (2000) 205 CLR 337).

12. A judge should decline to sit and hear a case if he or she has affirmatively concluded that there is a ground for disqualification. 

13. The relevant principle to which I have referred must also be seen in the context of how the parties or the public might apprehend whether or not the judge might bring an impartial and unprejudiced mind to the issue involved.  The apprehension of bias principle obviously arises from the common law principle that the tribunal must be independent and impartial.

14. The question for the judge is whether it might reasonably be suspected by fair-minded persons that a fair and unprejudiced mind is not being brought to the hearing. (See R v Watson; exparte Armstrong (1976) 136 CLR 248 at 264).

15. One of the categories of disqualification for the appearance of bias includes disqualification by association.  That was described by Deane J in Webb v R (1994) 181 CLR 41 at 74 as:

    Where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings.

    Another such category is the disqualification by extraneous information.  Deane J referred to this category as overlapping the disqualification by association and said it consisted of cases where:

    Knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.

16. In Strahan and Strahan [2009] FamCAFC 204, the Full Court endorsed the principle in Ebner (op cit) that there was a two step process to be used in applying the test for disqualification on the ground of bias.  Their Honours said that the first step was the identification of the matters that gave rise to the apprehended bias.  The second step required consideration of the “logical connection” between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits.  Their Honours stressed that in applying the two step process, it had to be kept firmly in mind that judges have a duty to sit and not accede too readily to suggestions of the appearance of bias.

17. In those circumstances, this matter should be determined in open court and I propose to so order and for the parties to file outlines of argument in relation to the interstate judge issue.

I certify that the preceding Seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  14 April 2010