SELLERS & BURNS - [2018] FamCA 617

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: SELLERS & BURNS [2018] FamCA 617
Case: [2018] FamCA 617
Decision Date: 15 August 2018

CaseChat Overview and Summary

In this matter before Foster J, the husband sought the disqualification of the judicial officer on the grounds of apprehended bias. The dispute concerned an application made by the husband, the details of which are not specified in the provided text.

The central legal issue before the court was 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 questions before them. This required the court to consider the established principles regarding apprehended bias, particularly in the context of pre-judgment.

Foster J applied the test for apprehended bias as articulated in *Johnson v Johnson* and *Ebner v Official Trustee in Bankruptcy*. The court noted that the test is objective and based on public confidence in the judiciary, requiring consideration of whether a reasonable observer might apprehend bias. The judge also acknowledged that judges are expected to engage with cases, form tentative views, and participate in judicial dialogue, and that such engagement does not, in itself, indicate pre-judgment. The court further considered the principle that judges have a duty to exercise their jurisdiction unless there is a substantial ground for disqualification, and that litigants cannot choose their judges.

The husband's application for disqualification was dismissed. The court also made orders regarding any subsequent applications for costs, requiring written submissions to be filed and served within specified timeframes.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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-judgment53. 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.

Ratio Decidendi

Legal Principle Established

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