SCVG & Estate of KLD (No 7)

[2023] FedCFamC1F 788

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

SCVG & Estate of KLD (No 7) [2023] FedCFamC1F 788

File number(s):

SYC 4380 of 2008
SYC 5956 of 2016

Judgment of:

GILL J

Date of judgment:

13 September 2023

Catchwords:

FAMILY LAW – COURTS AND JUDGES – DISQUALIFICATION – Costs and vexatious litigant proceedings – Impartial mind – Where a number of matters throughout the proceedings are raised as evidence of a concluded view – Where none of the matters raised make out a reasonable apprehension of a fixed mind – No order for disqualification made

Cases cited:

Charisteas v Charisteas (2021) 273 CLR 289

Re JRL; Ex parte CJL (1986) 161 CLR 342

Division:

Division 1 First Instance

Number of paragraphs:

11

Date of hearing:

13 September 2023

Place:

Canberra

Solicitor for the Applicant:

Litigant in Person

Counsel for the First Respondent:

Mr Cox, SC, with Ms Seric

Solicitor for the First Respondent:

Macphillamy’s

Solicitor for the Second Respondent:

Mr Eskerie, Sparke Helmore

ORDERS

SYC 4380 of 2008
SYC 5956 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR SCVG

Applicant

AND:

ESTATE OF MS KLD

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	13 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.The application for disqualification filed by Mr SCVG on or about 7 September 2023 is dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX-TEMPORE REASONS FOR JUDGMENT

GILL J

1. In this matter, by an application filed on 7 September 2023, with an accompanying affidavit within which there were submissions embedded, Mr SCVG seeks that I disqualified myself from the further determination of matters in this proceeding and in particular, the costs and vexatious litigant applications that are made by the Estate and the cost application that is made by the Child Support Agency (“the CSA”).

2. On the commencement of proceedings I identified to Mr SCVG the necessity to deal with the disqualification application first, a process that he indicated his agreement with.  In enquiring of Mr SCVG the matters that he wished to put in support of his application for disqualification he sought to rely upon the submissions embedded within the affidavit.  I indicated to Mr SCVG that I found them impenetrable and I asked that he emphasise the matters that he says point to the need for me to disqualify myself.  The general proposition advanced by Mr SCVG is that I have expressed or evidenced a concluded view about matters that mean in the resolution, in particular of the cost proceedings, a fair-minded lay observer may conclude that I have not come to the matter with an impartial mind.  I required Mr SCVG to specifically identify where those purportedly concluded views were expressed and advised him that failure to identify where they were expressed and the precise terms and context of their expression would lead to a disregarding of those particular matters as their effects could not be assessed without such identification.  It may be observed that is particularly so in such a long-running and complex matter.  Mr SCVG then chose to emphasise the following matters. 

3. The first is at [63] of the substantive judgment in this matter where Mr SCVG suggested that I expressed an opinion that the value of the shares there being discussed could be taken to be a nil value as a result of a discount being applied to their value due to Ms KLD, whose interest was being assessed, being unable to deal with the shares without the agreement of third parties.  Having read that paragraph of the judgment I am of the view that no such opinion was expressed.  That matter falls away.

4. Mr SCVG next referred to a previous refusal to permit particular examination of Mr Draper regarding an entity called AC Ltd on the basis that that subject matter was not contained within Mr SCVG’s pleadings in support of his applications.  I was not given a reference by Mr SCVG to such.  However, even if Mr SCVG’s description is accepted, confining a party’s case to the party’s pleadings does not exhibit some fixed position or closed mind.

5. The next matter Mr SCVG took me to were comments he asserted that I made in relation to the CSA’s conduct.  He did not identify the comments or where they were made, and hence that aspect of his submissions is disregarded. 

6. The next matter identified by Mr SCVG was an allegation that I had made comments in relation to family provision proceedings in New South Wales.  Again, failure on Mr SCVG’s part to identify the comments or their context leads to that submission being disregarded. 

7. The next matter raised by Mr SCVG was raised with particularity and he directed me to the transcript of the substantive trial at pages 88, following through to page 98, at which point Mr Draper was being questioned by Mr SCVG.  He asserted that rulings made there demonstrated on my part a closed mind, in particular, as to Mr Draper’s assertion that he could not recall matters and as to Mr Draper’s truthfulness.  The references I was taken to appear to be as to rulings on my part regarding the manner and scope of the questioning of Mr Draper by Mr SCVG.  They involve no determination of a factual matter. 

8. To the extent that Mr SCVG relies on there being an exhibition of a fixed mind regarding the financial circumstances of the Estate or the assessment of the witnesses with respect to the conduct of the litigation, none of the matters raised by Mr SCVG make those matters out. 

9. I would note also a further matter which, although not addressed in Mr SCVG’s oral submissions today, did appear to emerge from the affidavit submissions that he had filed which relate to a refusal on my part to issue subpoenas for the attendance of various witnesses today.  In the correspondence in support of that application Mr SCVG advised that each was a deponent in relation to an affidavit to be relied upon in these proceedings and advised that he had served notices to attend on the various witnesses.  Accepting that position as articulated by Mr SCVG, at face value no requirement for a subpoena was demonstrated.  Mr SCVG was further advised that any questions arising from such would be able to be dealt with at the hearing. 

10. Again, there is no basis to indicate that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions that I am required to decide in this matter (see for example, Charisteas v Charisteas (2021) 273 CLR 289).

11. In the context of the importance of a judicial officer discharging their functions (see Re JRL; Ex parte CJL (1986) 161 CLR 342), no order for disqualification should be made. Accordingly, the application for disqualification filed by Mr SCVG on or about 7 September 2023 is dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       20 September 2023