SELLERS & BURNS
[2018] FamCA 617
•15 August 2018
FAMILY COURT OF AUSTRALIA
| SELLERS & BURNS | [2018] FamCA 617 |
| FAMILY LAW – COURTS AND JUDGES – Disqualification – Where application that the Court disqualify itself by reason of apprehended judicial bias – Where consideration of the applicable “test” and considerations pertaining thereto – Where necessity for the answer to the test to be “firmly established” – Application dismissed. |
| Australian Solicitors Conduct Rules 2015 r 27 Family Law Act 1975 (Cth) |
| Australian Securities and Investment Commission v Reid [2005] FCA 1274 British American Tobacco Australia Services Ltd v Laurie [2011] HCA 9 Burns & Sellers (No2) [2017] FamCA 914 Burns & Sellers [2018] FamCA 93 Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 Ebner v Official Trustee in Bankruptcy; Cleane Pty Ltd v ANZ Banking Group Ltd (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Re JRL; Ex parte CJL [1986] HCA 39 Theophane & Hunt and Anor [2016] FamCAFC 87 |
| APPLICANT: | Mr Sellers |
| RESPONDENT: | Ms Burns |
| FILE NUMBER: | PAC | 5854 | of | 2016 |
| DATE DELIVERED: | 15 August 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 15 June 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Finnane QC and Mr McAuley |
| SOLICITOR FOR THE APPLICANT: | Norwest Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Karras Partners Lawyers |
Orders
(1)That the husband’s disqualification application is dismissed.
(2)That any application for costs be made by way of written submission filed and served within 28 days from this date with any submissions in response to be filed and served within a further 14 days.
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 Sellers & Burns 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 PARRAMATTA |
FILE NUMBER: PAC 5854 of 2016
| Mr Sellers |
Applicant
And
| Ms Burns |
Respondent
REASONS FOR JUDGMENT
Introduction
The present application for determination is the application by the husband for me to recuse myself from further hearing the application on foot for enforcement of financial orders and indeed from hearing any further or subsequent aspect of proceedings as between the husband and wife.
The present application is made in the context of a pending enforcement application filed by the wife on 19 January 2018 seeking the enforcement of certain financial obligations imposed on the husband by reason of earlier interim property and spousal maintenance orders.
It is of some utility to consider those orders made on 14 November 2017, which are as follows:
Interim Spouse Maintenance
(1)That the husband pay to a bank account, nominated by the wife in writing within two days from the date of these orders, the sum of $3,250.00 per week by way of interim spousal maintenance pending further order with the first payment within seven days from the date of these orders.
Interim property adjustment
(2)That the husband pay to the wife the sum of $150,000.00 by way of interim property adjustment with payments as follows:
(a)As to the sum of $50,000.00 within 14 days from the date of these orders;
(b)As to the further sum of $100,000.00 within two months from the date of these orders;
(c)Such payments to be made to a bank account, nominated by the wife in writing within two days from the date of these orders.
These Reasons for Judgment assume familiarity with Reasons for Judgment delivered 14 November 2017 giving rise to those primary obligations: Burns & Sellers (No. 2) [2017] FamCA 914 and familiarity with the Reasons for Judgment delivered 23 February 2018 relating to the subsequent stay application pending determination of the husband’s appeal in respect to the orders of 14 November 2017: Burns & Sellers [2018] FamCA 93.
On 23 February 2018 in the context of the husband’s stay application arising from his appeal from orders made 14 November 2017 orders were made as follows:
(1)That the interim order as to spouse maintenance made on 14 November 2017 be stayed pending determination of the husband’s Application for Leave to Appeal and Appeal to the Full Court pursuant to Notice of Appeal filed 11 December 2017 provided that the husband pay to the wife by way of interim spouse maintenance the sum of $1,850.00 per week commencing 11 December 2017.
(2)That the husband’s Application for Stay of the interim property order made 14 November 2017 be dismissed.
(3)That costs of both parties of and incidental to the Application for Stay be reserved pending determination of the Application for Leave to Appeal and Appeal to the Full Court.
The Law
The “two step test” as to apprehended bias was succinctly set out in Ebner v Official Trustee in Bankruptcy; Cleane Pty Ltd v ANZ Banking Group Ltd (2000) 205 CLR 337 (at page 345):
… 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 applicable considerations in relation to apprehension of bias are well settled and were more recently summarised by the Full Court in Theophane & Hunt and Anor [2016] FamCAFC 87 as follows:
Bias and pre-judgment
53. Amongst the various “grounds” of appeal, there are a variety of complaints that we have distilled to the issues in [8]. Doing the best we can, a major complaint of the father is that his Honour was biased in that he pre-judged the case and ought to have disqualified himself.
54. The principles to be applied in respect of disqualification for apprehended bias are set out in Johnson v Johnson (2000) 201 CLR 488 and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. In the former, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at 492-493 as follows:
11. … 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)
12. 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”.
13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (footnotes omitted)
55. In Ebner, the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at 348:
The principle to be applied
19. 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.
20. This is not to say that it is 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.
21. 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.
22. 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.
23. Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.
It is necessary to bear in mind the caution expressed by Mason J in Re JRL; Ex parte CJL [1986] HCA 39:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation.
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.
The answer to the test for apprehended bias must be “firmly established”. As observed by Gummow J. in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 9:
[70] …But it was remarked in the joint reasons of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson to which further reference is made below, that the hypothetical observer would be no more entitled to make snap judgments than would be the decision maker under observation. Accordingly, and as the joint reasons make clear, later statements which qualify earlier statements may be relevant. There is no logical reason why any temporal element should be brought into that general principle; it depends upon the circumstances of the particular case…
[71] To that perception of the role of the hypothetical observer must be added the consideration 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". The words are those of Mason J in Re JRL; Ex parte CJL, in a passage adopted by Callinan J in Johnson v Johnson. Mason J. also said in that passage, using words later said by the English Court of Appeal to have "great persuasive force", and adopted by the New Zealand Court of Appeal:
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.
The fair minded lay observer?
Kirby J. said in Johnson v Johnson (2000) 201 CLR 488:
The fictitious bystander and matters that lawyers know
[46] If a court of appeal were deciding an allegation of prejudgment for itself, according to its own knowledge and standards, a number of considerations might be taken into account in a case such as the present:
1. Appellate judges realise that most adjudicators strive to be independent and impartial and to make adjustments (so far as they can) for factors of which they are aware which might impact on their decision-making. By their training and experience, most such adjudicators are conscious of the high expectations imposed upon them.
2. Whatever may have been the tradition in earlier times, opinions favouring silence on the part of an adjudicator during a hearing (which is the surest means of avoiding most allegations of prejudgment) are now seen as carrying risks of an even greater injustice. Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator's undisclosed concerns. A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions. Uninformed members of the public are doubtless sometimes surprised by the robust exchanges which take place in court, especially between a judge and experienced lawyers. But judges and other adjudicators and lawyers know that such dialogue can have great value.
3. Changes that have come about in the administration of justice, including the increase in the number of trials by single judges, have also required, to some extent, an adjustment to the rules of reticence in judicial observations that may still be appropriate where trials, criminal or civil, are conducted before a jury. One of the reasons for such changes has been the desire to increase the efficient management of the trial process. Yet it is in that context that the expressions of preliminary and tentative views may sometimes appear to an outsider to indicate prejudgment. Although some adjudicators may be hard to shift from tentative opinions, lawyers know that, in most judicial decision-making, the process is a continuous one. Preliminary inclinations do change.
4. The adversary system depends on vigorous interaction not only between the parties and their representatives but also between the adjudicator and those persons. Where the parties are represented by trained lawyers, the latter can be taken to be aware of (and presumed, if necessary, to have explained to their clients) the character and purpose of tentative opinions that guide the direction of the trial and encourage its proper focus. No rule of law should be adopted in relation to disqualification for prejudgment which unreasonably undermines, or is fundamentally inconsistent with, that system. (Footnotes omitted)
In Johnson v Johnson (supra), the plurality observed that:
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”.
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of the particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice… (Footnotes omitted)
In Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 Callinan J said at [177]:
It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried…
Lander J. in Australian Securities and Investment Commission v Reid [2005] FCA 1274 reviewed authorities concerned with the level of knowledge and characteristics imputed to the fair minded lay observer. After he completed his review Lander J at [110] described such a person as one:
…who is reasonable and fair minded, who has a general understanding of the facts and circumstances surrounding the case, who is not a lawyer but is not wholly uninformed and uninstructed about the law in general, and who would ordinarily think that a judge will act so as to ensure both the appearance and substance of fairness and impartiality without at the same time rejecting the alternative possibility…
It is incumbent for the husband to firmly establish the “logical connection” between his complaints and the feared deviation from the course of deciding the case on its merits. Each of the husband’s complaints is dealt with below.
It is also important to again note the context in which the present application is made. The only matter for determination before me was the discrete enforcement application. Such application requiring the examination of the husband as to his financial circumstances and thereafter perhaps orders as to enforcement.
The Registry of this court at Parramatta does not have a docket system where matters remain before a “docketed” judge. Matters are listed subject to available judicial time before any judge sitting in the Registry either a resident judge or visiting judicial officer.
Case management has evolved further since the determination in Johnson. Judges of this court are actively engaged in case management and the refining of issues for trial. Indeed, the court actively seeks to promote proper disclosure and discovery that is intrinsic to the determination of matters on known fact and not just by inference arising from the failure of a party to properly disclose or present their case.
The Basis of the Application for Recusal
Counsel for the husband outlined that the present application was based on and arose from:
a)the transcript of proceedings before me on 1 May 2018;
b)the transcript of proceedings before me on 23 May 2018; and
c)the previous orders made by me restraining the husband’s solicitor and any employee or partner of his firm from further acting on behalf of the husband or any other party in these proceedings.
The Transcript 1 May 2018:
It is to be noted that the husband did not appear in person on 1 May 2018 but was represented by his solicitor. The matter was listed for case management only.
Counsel for the husband raises a number of discrete issues arising from the transcript of 1 May 2018:
a)firstly it was asserted that it “was made clear that the enforcement application was to be deferred following determination of the bankruptcy”. A consideration of the transcript clearly evidences that the only discussion was as to whether the further listing of the enforcement application on 23 May 2018 was required having regard to the proceedings otherwise pending in the Federal Circuit Court of Australia. The legal representatives were invited to inform the court prior to that date whether indeed the listing would be required. Otherwise it is clear that the listing remained. The reasonable lay observer would have had no doubt that such was the case. This complaint is without foundation;
b)secondly it was asserted that the husband was accused of “stonewalling” and “nondisclosure”. A consideration of the transcript reveals that prior to the impugned words there was a lengthy discussion between the legal representatives of the parties as to difficulties in providing an agreed joint letter of instructions to the single expert valuers, who were retained by agreement, to value the husband’s corporate and trust interests and difficulties in the parties reaching agreement as to the basis upon which the husband’s interest in his real estate property at Suburb T was to be valued, that is subject to the existing tenancy or not or indeed on the basis of both scenarios.
A robust discussion then followed as to the husband’s failure to provide relevant documents to the single expert. The legal representative for the husband was reminded as to this court’s own disclosure rules and the obligation to provide relevant documents by way of disclosure. The legal representative for the husband remarked “well, it’s a matter of who he obtains that from”. In response to the husband’s legal representative I said “so your client and his family better get their act together and start behaving sensibly for once in these proceedings. And I’m glad you’re in it so perhaps some common sense can be brought to this. Look, you know, simply putting up some Chinese wall to prevent valuations is not going to help anybody”.
Otherwise, as correctly submitted by the legal representative for the wife in oral submissions, a consideration of the court’s earlier judgments referred to above reveal significant comment and findings as to the paucity of the husband’s evidence and his failure to disclose relevant documents and evidence in the context of those applications. The reasonable lay observer with knowledge as to the history of the matter could only see the comments as unsurprising and appropriate. This complaint is also without foundation;
c)thirdly it was asserted that I had indicated that I proposed to make a settlement such that the wife will obtain the husband’s Suburb T terrace. Once again a consideration of the transcript in the context of complaint as to difficulties in obtaining valuations and disclosure as referred to above reveals that the legal representative for the husband remarked “I understand where your honour is coming from” in response to which I said “because I’m sure that [Ms Burns] would be delighted to have the terrace subject to a very elderly gentleman living in there for the next couple of years as her settlement or otherwise”. Such being a conjecture as to what may happen in the event of ongoing non-disclosure.
The words of Kirby J in Johnson (supra) are apposite:
Where the parties are represented by trained lawyers, the latter can be taken to be aware of (and presumed, if necessary, to have explained to their clients) the character and purpose of tentative opinions that guide the direction of the trial and encourage its proper focus. No rule of law should be adopted in relation to disqualification for prejudgment which unreasonably undermines, or is fundamentally inconsistent with, that system.
This complaint is without foundation; and
d)fourthly the husband complains of a comment made that “I think it is about time someone got up to speed”. This must be seen in the context of the previous discussions referred to above. Clearly the course of the matter in general was unsatisfactory. The legal representative for the husband then responds “I am not so far advanced in the matter to be able to…” This comment was remarkable in light of the fact that the legal representative had filed a Notice of Address for Service on 5 April 2018, weeks before the listing. Thereafter follows a discussion as to aspects of case management and an invitation to the husband’s legal representative to get fully instructed.
The reasonable lay observer would well be mindful of the Court’s desire for the primary issues to proceed in a proper fashion. Comments were not in any way made in respect to the present matter now for determination. An assertion that such comments give rise to a demonstration of “antipathy” towards the husband or demonstrate a lack of objectivity or even-handedness must be seen in the overall context of that day. The reasonable lay observer would, with respect, see the Court as trying to move the matter forward appropriately. This complaint is without foundation.
The Transcript 23 May 2018:
Counsel for the husband complains that on 23 May 2018 on which date the enforcement application was before the court that the husband was given no notice that the application was to be heard, was required to give evidence and told he did not need legal advice.
The transcript reveals this was said to the husband:
HIS HONOUR: It’s only an examination, [Mr Sellers]. You don’t need legal advice. Mr Karras wants to ask you some questions as a consequence of you not complying with orders of this court. So he – you can give that. You don’t need legal advice about that. You’re just required to tell the truth on oath. What transpires following that is another issue. So your primary application then seems to be that you want to make an application for me to disqualify myself.
[MR SELLERS]: That’s correct, your Honour.
And later:
[MR SELLERS]: I’m not a lawyer. I need legal advice.
HIS HONOUR: Well, I can hear that on Friday then.
[MR SELLERS]: I will need time to get the funds to secure a lawyer ‑ ‑ ‑
HIS HONOUR: Well ‑ ‑ ‑
[MR SELLERS]: ‑ ‑ ‑ to get legal advice. So I will need at least two months.
HIS HONOUR: No, this is an enforcement application that needs to be heard and determined. If you’re going to make an application for disqualification, you should make it today or I will give you a very short compass for that to happen.
[MR SELLERS]: I would require two months, your Honour.
HIS HONOUR: And I will reserve – you’re not getting two months, Mr Sellers. At the moment, there seems to be some significant sum outstanding and some periodic payments outstanding. Mr Karras is entitled simply to inquire of you what your financial circumstances are so that he can seek an order for enforcement in some form or another.
The transcript reveals this from the wife’s legal representative:
MR KARRAS:... And I might add, your Honour, the matter was before Registrar Tran yesterday, when that very specific issue was raised, amongst others. The husband has not taken the opportunity to address the deficiency by having something prepared over the last 24 hours.
…..
MR KARRAS: So his requirement to file the financial statement is not only fortified by the Act ... the Rules but also, your Honour, by a specific direction that was made by Registrar Tran, on 5 April 2018, where he was required to file within 28 days. So he actually stands in breach of two obligations, in relation to the one Act.
A consideration of the earlier transcript referred to above clearly reveals that the application was listed on 23 May 2018 and it appears that the husband had appeared before the Registrar the day before.
In light of the various matters referred to above my comment of “how surprising” would be seen by the reasonable lay observer as reflective of the Court’s frustration. These complaints are of no substance.
The Order restraining the husband’s solicitors:
Counsel for the husband made complaint that earlier orders restraining the husband’s solicitors from further acting demonstrated apprehended bias. This notwithstanding that the orders were made in the context of a discrete application for such an order and that the order is now the subject of an appeal to the Full Court.
It is contended on behalf of the husband that such order was made in error as to the scope of the order that restrained the solicitor and “[DD Lawyers] and any employee or partner of that firm”.
A solicitor has personal obligations under rule 27 of the Australian Solicitors Conduct Rules 2015 but the scope of any order made by a court is a matter for the court in the exercise of its jurisdiction touching upon the proper administration of justice. Whether the order was made in error is now a matter for the Full Court.
It is not a matter that the reasonable lay observer would see as indicative of apprehended bias but simply a question of law to be determined in the usual way. There is no basis for this complaint in the context of the discrete present application or indeed the further conduct of these proceedings.
The logical connection
It is incumbent on the husband to demonstrate the logical connection between his various complaints and the fear perceived by the reasonable lay observer that the case would not be decided on its merits.
The application is made in the context of a discrete application for enforcement which has limited evidentiary and financial scope. Just how that application would not be decided on the merits is not the subject of any submission. Just how the present application extends to proceedings not even before me remains a mystery.
None of the husband’s “complaints” have substance for the reasons given above. In the absence of any complaint of substance there is no logical connection that can be demonstrated. Nor indeed was there any cogent submission as to any asserted logical connection that would arise in the mind of the fair minded lay observer.
This “logical connection” with the feared deviation from the course of deciding the ultimate case on its merits has not been established by any of the contentions or the contentions as a whole.
The application for recusal is to be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 15 August 2018.
Legal Associate:
Date: 14 August 2018
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