Rilak & Tsocas
[2017] FamCA 757
•26 September 2017
FAMILY COURT OF AUSTRALIA
| RILAK & TSOCAS | [2017] FamCA 757 |
| FAMILY LAW – COURTS AND JUDGES – Disqualification – Where the applicant seeks that the judge be recused for reason of apprehended bias – Where there is no evidence or submission made as to the applicant’s assertion of apprehended bias – Application dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – STAY – Application for a stay of costs orders pending the determination of an appeal – Where the appeal does not have a strong basis – Where the granting of a stay would deprive the respondent of interest – Application dismissed. |
| Ebner v Official Trustee in Bankrupcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Rilak & Tsocas (No. 2) [2017] FamCAFC 126 Re JRL; Ex parte CJL (1986) 161 CLR 342 Strahan & Strahan (Disqualification) (2009) FLC 93-414 Trahn & Long(No. 2) [2008] FamCAFC 194 |
| APPLICANT: | Ms Rilak |
| RESPONDENT: | Mr Tsocas |
| FILE NUMBER: | SYC | 2062 | of | 2010 |
| DATE DELIVERED: | 26 September 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | IN CHAMBERS |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In Person |
Orders
IT IS ORDERED
That the application that the Honourable Justice Rees be disqualified, be dismissed.
That the application for a stay of the order made on 11 May 2017 be 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 Rilak & Tsocas 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).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2062 of 2010
| Ms Rilak |
Applicant
And
| Mr Tsocas |
Respondent
REASONS FOR JUDGMENT
Ms Rilak (“the applicant”) has filed an application seeking, firstly, a stay of an order for costs made on 11 May 2017, pending appeal. Secondly, she asks that I recuse myself from any further hearing in relation to her proceedings.
On 19 July 2016 I heard an application that Mr Tsocas (“the respondent”) be dealt with for contravention. The application was dismissed on 22 July 2016.
On 11 May 2017, the applicant was ordered to pay to the respondent $5,000 by way of costs.
I am required to consider the recusal application first.
In support of both applications, the applicant relies upon an affidavit sworn by her on 14 August 2017. In that affidavit she deposed as to the history of the litigation and concluded, “I also seek that Justices Rees, Ryan, Stevenson and Loughnan will recuse themselves to preside or manage any our (sic) family law matters in the future due to their previous involvement and bias against me.”
Directions were made on 29 August 2017 requiring the applicant to file written submissions by 4.00 pm on 12 September 2017. The applicant was directed to serve the respondent but he was excused from filing any Response or from attending in relation to the application unless he chose to do so.
No submissions have been filed by the applicant. There is no evidence that the respondent has been served.
Therefore, these reasons are based on the affidavit of the applicant sworn 14 August 2017.
THE APPLICATION FOR DISQUALIFICATION
Insofar as the application seeks an order that I recuse myself, I note that there is no evidence contained in the applicant’s affidavit which sets out the facts upon which she relies.
Because of the wording used in the application, I propose to treat the application as being based on an apprehension of bias.
Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 said:
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than 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 he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that 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”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. 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 the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. [Footnotes omitted]
In the High Court decision of Johnson v Johnson (2000) 201 CLR 488 at 492‑493, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) set out the principles to be applied in such an application as follows:
… It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether 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. [Emphasis added]
That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”. [Footnotes omitted]
In Ebner v Official Trustee in Bankrupcy (2000) 205 CLR 337 at 345 (“Ebner”), the High Court explained the concept of apprehension of bias in the following terms:
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 the appearance of departure from it is prohibited lest 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. [Original emphasis]
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 and 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. [Emphasis added]
Also in Ebner the High Court said, at 348:
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 choose their cases; and litigants do not choose 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.
In Strahan & Strahan (Disqualification) (2009) FLC 93-414 the Full Court said, at 83,690:
It will be noted that the plurality in Johnson considered it unnecessary to undertake a detailed analysis of the principles relating to apprehended bias, preferring to rely on the test of “whether 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.” The plurality in Ebner articulated a two step process to be used in applying that test in individual cases. The first step is the identification of the matters said to give rise to the apprehended bias. The second step requires 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.
In applying this two step process to particular cases it must be kept firmly in mind that judicial officers have a duty to sit and should not accede too readily to suggestions of appearance of bias.
In the absence of any written submissions, I am unable to say on what basis the applicant apprehends bias. It is not sufficient to say that I have ruled against her in relation to her application in relation to the allegation of contravention.
The applicant does not identify what facts might lead me to decide the application for a stay on a basis other than its legal and factual merits.
In Rilak & Tsocas (No. 2) [2017] FamCAFC 126, the Full Court (Ainslie‑Wallace J sitting as a single judge) considered the application for leave to appeal out of time in relation to the dismissal of the contravention. Her Honour said:
18.The respondent attached the reasons for the decision of Rees J on the contravention application. It is apparent from those reasons (see Rilak & Tsocas(No 2) [2016] FamCA 590) that the applicant brought the proceedings asserting that the respondent had contravened the orders relating to the time the child spent with the applicant. Her Honour noted that the applicant sought an adjournment of the proceedings because she wished to be represented by counsel who was overseas but who could attend by mobile phone. That request was refused. The hearing of the application continued and the respondent was charged with the asserted contraventions and his pleas were entered. At that time, the respondent’s counsel sought to cross examine the applicant. A short adjournment occurred at the applicant’s request and she left the court, not returning when called by the court officer. The proceedings continued in her absence, her Honour considering each of the alleged contraventions and determining each of them. At the conclusion of that hearing her Honour reserved her decision, and the application was dismissed on 22 July 2016.
I am unable to discern any basis upon which I should recuse myself.
The only matter currently before me is the application to stay the orders for costs pending the determination of the application for security for costs.
The application that I recuse myself will be dismissed.
APPLICATION IN RELATION TO OTHER JUDGES
Insofar as the application refers to Justices Ryan, Stevenson and Loughnan, there are currently no matters listed before those judges. That application is incompetent and will be dismissed.
That application is an abuse of the process of the Court and is without reasonable grounds.
THE STAY APPLICATION
On 22 July 2016 I dismissed a Contravention Application filed by the applicant. On 11 May 2017, I ordered that the applicant pay the respondent’s costs of that application in the sum of $5,000.
The applicant did not appeal against the dismissal of the Contravention Application but she did appeal, within time, against the order that she pay costs.
The applicant brought an application for leave to appeal out of time against the dismissal of the Contravention Application.
That application was heard by Ainslie-Wallace J sitting as a single judge of the Full Court on 11 July 2017 and judgment was delivered on 12 July 2017. The application for leave to appeal out of time was dismissed.
In relation to the appeal against the costs order, the respondent made an application for security for costs. That application was heard by Ainslie‑Wallace J on 15 August 2017. Judgment was reserved.
The principles to be applied in an application for a stay pending determination of an appeal are set out in the judgment of the Full Court in Trahn & Long(No. 2) [2008] FamCAFC 194 said:
38.These principles, both in the general law and in respect of parenting proceedings, are well settled (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett and Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter included the following:
· the onus to establish a proper basis for the stay is on the applicant for the stay however it is not necessary for the applicant to demonstrate “special” or “exceptional” circumstances;
· a person who has obtained a judgment is entitled to the benefit of that judgment;
· the person who has obtained a judgment is entitled to presume the judgment is correct;
· the mere filing of an appeal is insufficient to ground a stay;
· the bona fides of the applicant;
· a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
· a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant the stay;
· some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case;
· the desirability of limiting the frequency of any change in a child’s living arrangements;
· the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and
· the best interests of the child the subject of the proceedings.
The stay is not ordered as a matter of right and the onus is upon the applicant for the stay to establish the proper basis.
The Grounds of Appeal in relation to the order for costs are contained in the Notice of Appeal filed by the applicant on 5 June 2017 as follows (as per original):
5.The Mother was ordered on 22 July 2016 to file a written submission regarding Cost to the Father’s counsel oral submission:
(a) while the Mother was absent from the hearing;
(b)within 14 days of the orders, while the Mother’s barrister is overseas (with the knowledge of the Court);
(c)without having no assessment of cost account from the father’s solicitors until 26 July 2016.
Dealing with those assertions in order:
(a)The submissions on behalf of the father were set out in full in the judgment of 22 July 2016 dismissing the contravention, and the mother, in her own affidavit in relation to costs, deposed to having a transcript.
(b)The mother’s submissions were not filed until November 2016.
(c)The mother had the father’s costs assessment before she filed her material.
The appeal does not have a strong basis.
There is no evidence that a failure to stay the orders will render the appeal nugatory.
If the appeal is ultimately successful, there was no utility in staying the effect of the order which will be set aside.
If the appeal is ultimately not successful, the order will remain in force and the respondent should be entitled to interest on the judgment.
The only effect of granting the stay would be to deprive the respondent of interest on the judgment for the period of the stay. That would be unjust.
The application will be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 26 September 2017.
Associate:
Date: 26/9/2017
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